Court of compromise? A dangerous trend, forcing assault survivors to marry assailants

In a deeply concerning judgement, Allahabad High Court recently granted bail to a rape accused on the condition that he marries the survivor within three months.

This ruling is not just an aberration but part of a troubling pattern where courts, instead of upholding justice, prioritise societal appeasement over the survivor's rights and dignity.

The idea that marriage can be a solution to sexual violence is a regressive and dangerous notion that not only undermines the gravity of the crime but also places undue pressure on survivors to accept injustice under the pretext of social acceptance.

Such verdicts send a petrifying message that rape is not a heinous crime deserving of strict punishment but rather a negotiable offence that can be resolved through forced matrimony.

Bitter judgements of the past

Justice is meant to be a beacon of hope, a guiding light for those wronged, a force that punishes the guilty and protects the innocent. Yet, what happens when the very institutions entrusted with safeguarding justice begin to betray the survivors they are meant to protect? Such is the grim reality of India's present legal system, where courts have repeatedly attempted to turn rape into a negotiable offense, an issue that can be "resolved" not through punishment but through forced reconciliation cloaked in the name of societal peace.

This is not an isolated occurrence. India's courts have a history of reducing the brutality of sexual violence to mere social disputes that can be settled through marriage.

In 2021, then Chief Justice of India, Sharad Bobde, shocked the nation when he asked a government employee accused of raping a minor whether he would marry the survivor to escape punishment. “If you want to marry [her], we can help you. If not, you lose your job and go to jail,” he declared as if justice could be bartered with forced nuptials. His remarks led to widespread outrage, with calls for his resignation, as activists decried the dangerous precedent it set. But this was far from an anomaly.

 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, disregarding the coercion and societal pressures that often push survivors into such arrangements.

That same year, Justice Rohit Arya of the Indore bench of the Madhya Pradesh High Court, in a ruling so grotesque that it was later set aside by the Supreme Court, granted bail to an accused rapist under the condition that he visit the survivor’s home during Raksha Bandhan and allow her to tie a rakhi on him, an act meant to symbolize the sacred bond of sibling

Instead of upholding constitutional values, these judgments embolden perpetrators, telling them that their crimes can be undone with a coerced marriage, and worse, they send a clear message to survivors: that their pain, their dignity, and their right to justice matter far less than preserving a patriarchal status quo.

It is to be remembered that the trauma inflicted on a rape survivor is immeasurable, and forcing them into a marriage with their attacker only exacerbates their suffering. Survivors of sexual assault already struggle with mental health issues such as PTSD, anxiety, and depression, and such judicial mandates further strip them of dignity, and the right to heal on their own terms. Forcing a survivor to share a life with the rapist is tantamount to prolonged psychological torture. In many cases, survivors face immense societal and familial pressure to comply with such settlements, as they are shamed and ostracized rather than supported. The case of Bhanwari Devi, a social worker and rape survivor from Rajasthan, is a glaring example of how the system repeatedly fails survivors. For the last three decades, she has fought a case against five local men for rape, assault and harassment. Her legal battle has 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, her case has not led to any convictions.

Furthermore, the cultural and societal context in India makes this more dangerous. Many rape survivors are already silenced by societal stigma, victim-blaming, and the fear of dishonor on their families. Instead of reinforcing the idea that perpetrators must be held accountable, these court orders further solidify the belief that a woman's honor is more important than  justice. This has led to numerous cases where survivors were forced into marriage with their rapists, only to suffer continued abuse, harassment, and, in some tragic cases, suicide.

The central government's inaction in curbing such judicial practices is equally condemnable. While laws against rape exist, their interpretation and implementation remain flawed. The government has a responsibility to intervene and ensure that courts do not misuse their discretionary power to undermine the fundamental rights of survivors. There is an urgent need for judicial reform, legislative clarity, and awareness campaigns to end this archaic and harmful practice. The government must introduce clear legal guidelines that prohibit courts from treating marriage as a settlement for rape. Without systemic change, the justice system will continue to fail survivors and embolden perpetrators.

To address this problem, judicial officers must be provided with gender sensitivity training to ensure that they do not pass judgments that perpetuate gender discrimination and patriarchal values. The government too must introduce and enforce strict laws that make it clear that rape cases cannot be settled through marriage. Survivors must be provided with adequate legal and psychological support so that they are not coerced into unfair settlements.

The judicial practice of granting bail to a rape accused on the condition of marriage is an egregious miscarriage of justice that must be stopped immediately. It questions the integrity of courts, instead of serving as custodians of justice, who are becoming facilitators of oppression. Justice must be centered on the rights and well-being of the survivor, not on preserving the future of the perpetrator. For that, the judiciary and the government must work together for change and ensure that rape is recognized for what it truly is -- ma crime that deserves strict punishment, not forced reconciliation.

Nabeel Kolothumthodi is Parliamentary Secretary to a Lok Sabha MP and alumnus of the Faculty of Law, University of Delhi.