‘Are you willing to marry her?’ SC to rape accused

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A Supreme Court bench headed by Chief Justice of India (CJI) SA Bobde on Monday asked a rape accused whether he was ready to marry the complainant, attracting criticism from some lawyers.

The comment came at a time when another bench of the Supreme Court is mulling sensitisation programmes and guidelines for judges of the subordinate courts to stop comments and stipulations that might trivialise sexual offences against women.

“Are you willing to marry her?” the bench, led by the CJI, asked the accused who is a government employee at an electricity board in Maharashtra, and who approached the top court for bail in the rape case.

“Will you marry her? If you are willing to marry, we will consider this (petition)…or else you will go to jail and lose your job,” added the bench, also comprising Justices AS Bopanna and V Ramasubramanian. It added that the court was not forcing the accused but was only asking about his willingness.

But the lawyer, appearing for the accused, said he could not marry her since he was married. The counsel told the court that his client offered to marry the complainant, who was a minor in 2016, but she refused. “Then I married someone else,” said the accused, adding he was requesting for a protection from arrest since he would be suspended from the government job if jailed for 48 hours or more. The lawyer also pointed out that the alleged offence dated back to 2014-15 but the complainant lodged FIR in 2019 when she attained majority.

According to the FIR, the complainant was stalked and raped by the accused several times in 2014-15 when she was a student of ninth standard. Later, mother of the accused assured that she would get her son married to her once she turned 18 but that promise was broken. The lawyer for the accused said his client was on bail since January 2020 but the Aurangabad bench of the Bombay high court cancelled his pre-arrest bail on February 5, this year on the woman’s complaint. The SC bench stayed the arrest of the accused for four weeks, allowing him to apply for regular bail before the trial court concerned.

Supreme Court lawyer Aparna Bhatt said: “I am not aware of the full facts but it is shocking that in a case of rape, the Supreme Court considers marriage as a solution. These are serious crimes and no leniency should be afforded to the accused in such crimes… I hope the bar takes up the issue…”

Bhatt, along with six other women petitioners, last year filed a petition in SC against a Madhya Pradesh high court order granting bail to the accused in a case of molestation on the condition that he would have the victim tie a rakhi (implying he would accept her as his sister). She also cited another case wherein an accused got bail to marry the victim.

Bhatt’s petition came up before an SC bench headed by justice AM Khanwilkar in October and November 2020 when it was strongly supported by attorney general KK Venugopal. Pressing for training and sensitisation programmes for the judges of the subordinate courts, the A-G condemned the “patriarchal mindset” and added: “Any judge who wants to pass such an order must place themselves in the shoes of the victim of the sexual violence and assess the crime as if the same had been committed on a member of their own family.”

Advocate Shobha, who has represented several victims of sexual offences said: “Such statements (about marrying victims) not only trivialise rape offences but shows how crimes against women in general, are seen by the society. It is very disturbing indeed when judges make such statements.”

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