Justices of Madras high court while hearing rape cases have been passing sensational comments. In June 2015, Justice D. Devadass, while hearing an appeal against conviction in a rape case filed by the accused, suggested that the victim who was around 15 years at the time of the offence should marry the rapist. The media had a field day inviting comments from feminists, experts and legal luminaries who condemned the judge for his comments.
Though the comments — that the child needs a father and it is difficult to raise a child as a single parent — seemed atrocious then, retrospectively it appears they were based on ground reality and have proved the experts wrong. It seems that the judge had a better grasp of our judicial and social reality than the activists and feminist experts who had denounced him.
One news report had dubbed the judge’s suggestion as “rape under the promise of marriage”. These are the types of cases which some legal experts and even feminists are demanding be taken out of the ambit of rape law as in most cases all that the victim wants is to marry the rapists.
The Supreme Court has held that consent to sexual intercourse in cases where a man befriends a woman and lures her into a sexual relationship with the promise of marriage, only to dump her when she gets pregnant, is vitiated consent and amounts to rape. So how can the courts then sanction an arrangement where it presents a girl with no other choice but to marry the man who raped her
After the Madras high court ruling, when reporters and a few activists “discovered” her and descended upon her for her comments, she had stated, “Does the judge know the humiliation and stigma I have gone through all these years since the incident ” But, may I add, did the reporters and activists who interviewed her understand the trauma this young college student, who was raped by a friend who had spiked her drink before raping her and then threatened to circulate the video recording of the rape, had undergone No, I don’t think so. She was a mere “case” for the prosecutor, a sensational news story for the reporters, and a high point of “rape case follow-up” for activists. Nothing beyond. Despite the occasional media glare, it appears that this orphan teenager was alone throughout the ordeal which lasted seven long years.
She questioned how she could trust the accused and his family members, what was the guarantee that he would not discard her and marry another woman. She asked that, instead, a part of the property of the rapist be given to her child. But she received no help either from the state or the activists to negotiate on her behalf, and out of sheer desperation she had to do it on her own, at great risk.
At the initial stage, when she discovered that she was pregnant, there were negotiations for marriage with the accused and his family. But the accused asked her to undergo abortion so that they could both “move ahead”. When she refused, he and his friends threatened to smother the infant to death.
Despite the threats she stood firm, supported by her brother and some close relatives. The DNA report proved that the accused was the father and four years after the incident, in 2012, the Mahila Court at Cuddalore convicted the rapist and ordered the accused to pay her Rs 2 lakh as compensation, an amount which was never paid.
After the comments by Justice Devadass in October 2015, the case came up before Justice A. Selvam who set aside the conviction and referred the matter for fresh trial on the ground that there was no clear proof that the victim was under 16 years at the time of the incident and that conviction based only on her oral evidence could not be sustained. It concluded that if the girl was above 16 years, it must be held that it was consensual sexual intercourse and not rape based on the fact that the accused was a known person and the girl had voluntarily gone out with him.
Rather than putting her through the ordeal of a fresh trial, the high court, invoking its inherent powers, could have called for the documents and verified them, and weighed it against her oral evidence in court, and finally decided the matter. It declined to exercise this option. The order of compensation was also set aside.
Unable to bear this humiliation and the financial hardships, when the matter came up for trial on December 29, 2015, the victim informed the Cuddalore Mahila Court that she had married the accused and they were now living together.
It was indeed a setback, as the courts had left the victim with no financial security or protection against domestic violence in her married life, and rendered her far more vulnerable than when she was raped. There were no directions from the court that the Rs 2 lakh compensation be kept aside as a future security for the child nor an assurance that the man will not be vengeful and subject her to cruelty as retaliation for having filed the case against him.
Three decades of anti-rape campaign of the 1980s, after the adverse ruling of the Supreme Court in the Mathura gangrape case (1972), it seems that for many victims marrying the rapist seems to be the only viable choice!
Unless our system is geared towards transforming victims into survivors, victims will continue to suffer. Only when our criminal justice machinery places the victims’ needs at the centre, can justice be served in any real sense.
“It is not a matter of merely changing the nomenclature while keeping intact an oppressive system which constantly re-victimises her, causes her extreme trauma and brings her down several notches in the social ladder from where she was, prior to the abuse. She becomes a survivor only when she emerges stronger for having walked through this intimidating system, with someone extending a helping hand, and in the process transforms the system itself, rendering it more humane. She needs support to overcome her vulnerabilities, and attain her goals and aspirations, beyond the ‘case’ in order to become a survivor.” This is the motto of the Rahat programme of Majlis which seems so apt as we ponder the developments in the case of the young woman, now 22 years of age, with a six-year-old child whom she has had to bring up on her own while seeking justice from our courts.
The writer is a women’s rights lawyer
