Marriage is no justice to a rape victim

On 20 February, Allahabad High Court passed a deeply troubling and widely noticed order. The bench, led by Justice Krishan Pahal, granted bail to 26-year-old rape accused Naresh Meena on the condition that he marry the survivor within three months of his release from jail.

And while this is not the first time this court and this bench has passed such an order — in October 2023, a man who raped and impregnated a 15-year-old was released on bail to marry his victim and ordered to make a Rs 2 lakh fixed deposit in his child’s name within six months from release — it is symptomatic of a dangerous trend that may be viewed by perpetrators as a ‘licence to rape and get off lightly’.

The National Crime Records Bureau (NCRB) recorded 31,982 cases of rape registered in 2022. The conviction rate of rapists, however, was around 27-28 per cent between 2018 and 2022, second lowest among the top five grave crimes, which include murder and kidnapping.

While inconsistency in applying the law and poor policing are factors that contribute to low convictions, one of the reasons why rapists continue to act with impunity is “the absence of fear of the law,” said senior criminal lawyer Rebecca M. John, as reported by Reuters. Tougher sentences — a minimum imprisonment of 10 years going up to the death penalty — were, she added, another possible reason for a judge’s reluctance to convict the accused.

Adding to the prevailing scenario where rapists can — and do — get away is the alarming rise of cases where courts compel rape survivors to marry their rapists.

Bitter judgements of the past

In 2021, then Chief Justice of India Sharad Bobde told Mohit Subhash Chavan, a government employee accused of repeatedly raping and assaulting a minor, that he could escape punishment by marrying her.

“If you want to marry [her], we can help you. If not, you lose your job and go to jail.” While Chavan’s bail plea was shot down by the Bombay High Court as “atrocious”, CJI Bobde’s remarks sparked outrage nationally and internationally.

Not an anomaly, either. In 2020, Justice Manju Rani Chauhan of Allahabad High Court quashed a rape case after it was revealed that the accused and the survivor had ‘settled’ the matter through marriage. That same year, Justice Rohit Arya of the Indore bench of Madhya Pradesh High Court granted bail to an accused rapist under condition that he visit the survivor’s home on Raksha Bandhan and allow her to tie a rakhi on him — an act symbolising sibling bonds and the man’s commitment to ‘protect’ the woman like a sister.

This grotesque ruling was later set aside by the Supreme Court. In 2019, Kerala High Court held that the rape case against the accused could be quashed once the accused married the victim. In 2024, Karnataka High Court granted bail to a 23-year-old youth to marry the 18-year-old whom he had sexually assaulted when she was16 — to protect her child ‘from ignominy’.

Rape is not a contract

The trauma inflicted on rape survivors is immeasurable. Forcing them into a marriage with their assailant only exacerbates their suffering. As the open letter that 4,000 women’s rights activists (including Annie Raja, Mariam Dhawale, Kavita Krishnan, Kamla Bhasin, Meera Sanghamitra, Arundhati Dhuru), progressive groups and concerned citizens (including Aruna Roy, Laxmi Murthy, Apoorvanand, Farah Naqvi, Ayesha Kidwai) sent to CJI Bobde put it, the ‘proposal of marriage as an amicable solution to settle the case of rape of a minor girl is worse than atrocious and insensitive for it deeply erodes the right of victims to seek justice’.

The signatories went on to say: ‘Your words [send] the message to other courts, judges, police and all other law enforcing agencies that justice is not a constitutional right of women in India. This will only lead to the further silencing of girls and women, a process that took decades to break. To the rapists, it sends the message that marriage is a licence to rape; and that by obtaining such a licence, the rapist can post facto decriminalise and legalise his act.’

Suggesting that the rape victim marry her rapist is, they said, condemning the victim to a ‘lifetime of rape.’ (India is one of the 30-odd countries that does not criminalise marital rape.)

Rape survivors struggle with severe mental health issues. Many attempt suicide. Judicial mandates to marry their rapists strip them of their constitutional rights. Shamed, ostracised and seeing no way out of such settlements, they are pushed into lives of prolonged trauma.

Instead of holding rapists accountable for their crime through convictions, and providing rape survivors the assurance of adequate legal and psychological support, ‘marry your rapist’ conveys the message that it is the woman’s ‘honour’ that is at stake rather than her right to justice. (Films contribute to ideas of rape as a tool for revenge and victim-shaming.)

The 2021 case of a minor girl in Pune, who killed herself after being forced to marry her rapist Rohit Raju Pawar, is a heartbreaking testament to the disastrous consequences of such a practice. Can courts that compromise heed the SC’s order of ‘no compromise’? The Supreme Court has held that any compromise between a rape victim and a perpetrator would be a ‘spectacular error.’

Urging the courts to “remain absolutely away” from marriage offers made by rapists, the Supreme Court clearly stated that “in a case of rape or attempt of rape, the conception of compromise under no circumstances can really be thought of”.

The courts are where we seek justice — the impartial force that punishes the guilty and protects the innocent. What happens when they betray this faith? They fail both the survivors and the entire criminal justice system. The grim reality in India is that courts have repeatedly attempted to turn rape into a negotiable offense, an issue to be ‘resolved’ rather than addressed.

These judgements embolden perpetrators, telling them that their crimes can be ‘undone’ with a coerced marriage. What’s worse, they send a clear message to survivors: their pain and constitutional right to justice counts for nothing. Without systemic change, judicial reform, legislative clarity, gender sensitivity and awareness campaigns, the legal system will continue to fail rape survivors.

The case of Bhanwari Devi, a social worker and rape survivor from Rajasthan, is one such glaring example. For the last three decades, she has fought a case against five local men for rape, assault and harassment. Her legal battle birthed India’s sexual harassment protection laws for women, forming the backbone of the landmark Vishakha guidelines for workplaces established by the Supreme Court in 1997. However, there have been no convictions.

Nabeel Kolothumthodi is parliamentary secretary to a Lok Sabha MP and alumnus of the Faculty of Law, DU