Advocate Anamika Roy Choudhary
Recently on 1st March 2021 Supreme Court bench headed by Chief Justice of India (CJI) S.A Bobde asked a rape accused whether he was ready to marry the complainant, attracting lots of criticism, shocked many created a lot of sparked protest all over the country. The comment received criticism and backlash.
A group of more than 4000 women’s right activist, groups and citizen had written an open letter to CJI Bobde, demanding his resignation. The letter also demanded Bobde to retract the words he said and tender an apology to all Indian women.
In their open letter, the activists said that they were appalled by the fact that women had to take the burden of explaining the meaning of ‘seduction’, ‘rape’ and ‘marriage’ and to the Chief Justice of India, who holds power and duty to interpret the constitution of India and sits in Judgement.
Rape and sexual crime have been in spotlight since December 2012, when a brutal gang rape and a subsequent death of the young woman in a bus sparked days of protest and made global headlines.
Women groups advocate and child right activist in India generally converge on the point that marrying the survivor is a time tested ploy by rapist to escape conviction on the prolonged sentence. Indian court acceptance of marriage as a suitable resolution of rape cases has been commented upon and criticised by several legal expert and activist.
What was the matter?
The incident allegedly dates back to 2014-15, when the complainant was in Class 9. She claimed that Chavan, who was her distant relative, raped her multiple times until she was in Class 12.
According to a police complaint filed by the girl in 2019, she had allegedly attempted suicide in June 2018, after which her mother took her to the police station to file a complaint against Chavan. However, parents of both parties executed an undertaking, instead, agreeing to get them married once the girl turned 18 and accepting that they were both in a consensual sexual relationship.
But once the girl turned 18, Chavan’s mother allegedly refused to agree to their marriage, prompting her to file the complaint against Chavan on 17 December 2019.
Five days later, on 23 December 2019, Chavan filed for anticipatory bail, before the sessions court. He was granted bail on 6 January 2020.
A month later, on 5 February, the girl challenged this order in the Bombay High Court, demanding cancellation of his anticipatory bail. The HC on 5 February cancelled the anticipatory bail granted to Chavan, who then challenged this order in the Supreme Court.
‘Lack of sensitivity by lower court’ – Bombay HC
According to Chavan’s petition, the minor girl had alleged that he used to follow her on her way to school.
Chavan is also alleged to have repeatedly raped the girl, almost a dozen times, since she was in Class 9. He allegedly threatened her with acid attack and injury to her family members if she disclosed the incident to anybody.
Chavan’s petition also claimed that they had entered into a notarised undertaking in June 2018 claiming that their sexual relations were consensual and agreeing to get married when she turns 18. However, when she reached the age, the petition alleged that Chavan’s mother refused to get the two married, prompting the girl to lodge the complaint against him.
The complaint by the girl also noted that she and her mother had asked the accused to marry her but they refused and hence she filed the complaint because he allegedly forcibly had sexual relations with her repeatedly when she was a minor.
The FIR against him was filed under sections 376 (punishment for rape), 417 (punishment for cheating), 506 (punishment for criminal intimidation) of the Indian Penal Code, and sections 4 (punishment for penetrative sexual assault) and 12 (punishment for sexual harassment) of the Protection of Children from Sexual Offences (POCSO) Act 2012.
The lower court had, however, granted him anticipatory bail, observing that the “possibility of false implication of the Applicant who is now a public servant cannot be ruled out”.
The judge concluded that the girl had “sufficient maturity” about the incident, because “she has with meticulous details mentioned about use of contraceptive by the Applicant”.
The Bombay HC, however, asserted that the “approach of the learned judge from such a reasoning clearly shows his utter lack of sensitivity in such serious matters”.
“Such an approach is a clear indication that the learned Judge utterly lacks competence. It is indeed a matter which deserves a serious consideration,” the high court added, cancelling the anticipatory bail granted to him.
The Apex court was hearing a case against Mohit Subhash Chavan, a technician in the Maharashtra State Electric Production Company Ltd, who was accused of raping a minor girl in 2014-15. He was allegedly 17-18 years old then, and the girl was his distant relative and a student of Class 9 at the time.
On 5 February, the Bombay High Court had cancelled the anticipatory bail granted to Chavan by a lower court, on an application filed by the girl. He had then challenged this order in the Supreme Court, demanding anticipatory bail.
During the hearing, CJI Bobde asked Chavan’s lawyer, “Will you marry her?”
In response, the lawyer told the court that he will ask his client and inform the court.
“You should have thought before seducing and raping the young girl. You knew you are a government servant… We are not forcing you to marry. Let us know if you will, otherwise you will say we are forcing you to marry her,” the CJI said.
Chavan’s lawyer then told the court that he initially wanted to marry her but the girl refused.
“Now I cannot as I am already married,” he told the court.
The bench, also comprising Justices A.S. Bopanna and V. Ramasubramanian, then granted him interim protection from arrest for four weeks, allowing him time to file for regular bail.
This created public outcry in social media, news portal ablazed saying why CJI Bobde statement portrayed patriarchy and misogynist mindset observation.
The clarification by the CJI came on International Women’s Day; on 8th March 2021 Chief Justice of India S.A Bobde said that the comment he made during a hearing of a rape case last week was misreported to show that he disrespects women. “We did not have any marital rape cases before us. I asked my brothers. They, too, do not remember. This institution, particularly this bench, we have the highest respect for womanhood,” The top court has always accorded “the highest respect to womanhood” and the judiciary reputation was in the hands of its lawyer, CJI Bobde said.
Rape Cases where FIR quashed with settlement of marriage
there have been some precedents of High Court and Lower District court judgement where FIR quashed when the petitioner went for settlement for marriage with the accused.
Rape Case where settlement cannot be ground for FIR quashed
Supreme Court made the stand on Feb 10, 2020 in a laudable judgement titled Arun Singh & Others Vs. State of U.P through its secretary and another in Criminal Appeal no 250 of 2020(Arising out of Special Leave Petition (CRL) No 5224 of 2017has once again reiterated the settlement between accused and victim cannot be a valid ground to quash the FIR or the charge sheet when the offence is against the society and not private in nature.
If settlement is allowed in such serious cases. It will only serve further encourage and abet the crime. This alone explains why the Apex Court in this latest case has ruled like always. Link Shared
There is some landmark judgement by the Supreme Court in the recent case Anurag Soni vs. State of Chhattisgarh of 2019 consent of sexual intercourse on the false promise of marriage not excuse him from rape charges. no men ever thinks that he can get away most easily even after openly cheating a women by first promising to marry her and then having sex with her and still worse than dumping her shamelessly like a commodity from his own life without incurring any kind of liability whatsoever!
As per the latest data issued by NCRB the crime against woman is incresed by 10.3%
National Crime Records Bureau’s (NCRB) ‘Crime in India’ 2019 report showed how common crimes against women witnessed a steep rise across the country. A total of 4, 05,861 cases of crime against women were registered during 2019, showing an increase of 7.3% over 2018. As per the horrifying statistics, every 16 minutes, a woman is raped somewhere in India, and every four minutes woman experiences cruelty at the hands of her in-laws.
In 2019, the country had recorded 88 rape cases every day. Of the total 32,033 reported rape cases in the year, 11% were from the Dalit community. “The majority of cases under crime against women under IPC were registered under ‘Cruelty by Husband or His Relatives’ (30.9%) followed by ‘Assault on Women with Intent to Outrage her Modesty’ (21.8%), ‘Kidnapping & Abduction of Women’ (17.9%) and ‘Rape’ (7.9%). The crime rate registered per lakh women population is 62.4 in 2019 in comparison with 58.8 in 2018”, the data shared by NCRB showed.
As per the data, maximum rape cases were reported from Rajasthan and Uttar Pradesh. While Rajasthan reported 6,000 rape cases last year, UP had 3,065 cases. The country also recorded a decline of 0.7 per cent in cases of kidnapping and abduction in 2019 over the previous year, even as women and girls were victims in 78.6 per cent of the overall cases. A total of 1, 05,037 such cases with 1, 08,025 victims were registered in 2019, down from 1, 05,734 cases in 2018, the data showed.
Few heinous cases of Rape which grabs the Public attention
This case (rarest of rare) is one of the landmark judgements of India which has brought many changes in the rape law of India as it involves extraordinarily gruesome and barbaric. The accused were awarded capital punishment and finally hanged on March 20, 2020 the minor accused was tried in juvenile court and was sentenced to three years imprisonment in reform facility. This case proves that the Supreme Court took stand in the sensitive matter and this case shook the whole country.
This case brought changes in the Criminal Amendment Act popularly referred as Anti-rape Act, changes in the Indian Penal Code, 1860 and Legislative Reform i.e. CLA 2013 and MOHFW are the two landmark responses of the Government of India to the public protest.
On 14 September 2020, a 19-year-old Dalit woman was gang-raped in Hathras district of Uttar Pradesh, reportedly by four upper-caste men, when she went to a farm to collect cattle fodder. The men allegedly dragged her away by dupatta around her neck injuring her spinal cord in the process. The violence left her paralysed with a severe spinal cord injury.
The girl was at first taken to the Chandpa Police Station, where the police allegedly rejected her claims and humiliated the family. After fighting for her life for two weeks, she died in a Delhi hospital. The police cremated her body without the family’s consent.
Hyderabad veterinary rape case
- A woman veterinary doctor is gang-raped and killed. The assailants burn her body.
- Hyderabad police arrest four persons — Arif, Jollu Shiva, Jollu Naveen Kumar and Chintakunta Chenna Keshavulu.
- The news of the brutal rape and murder leaves nation outraged.
- Telangana government sets up fast-track court for a speedy trial.
- On December 6, all the four accused shot dead in a police encounter.
Most dangerous States for Women where rape cases have almost doubled in the past decade
1) Rajasthan from 1519 cases in 2009 to 5997cases in 2019
2) Kerala from 568 cases in 2009 to 2023cases in 2019
3) Delhi from 469 cases in 2009 to 1253 cases in 2019
4) Haryana from 603 cases in 2009 to 1480 cases in2019
5) Jharkhand from 719 cases in 2009 to 1416 cases in 2019
6) Uttar Pradesh from 1759 in 2009 to 3065 cases in 2019
Human Right watch and United Nation
Indian newspaper regularly carries stories of gruesome violence against women and girls and the ensuing lack of justice. However Human Right watch has found these changes largely remains on papers. Survivor of sexual violence faces formidable barriers, from reporting to police, to obtaining health care, counselling and legal aid. Women and girls have right to live with dignity and free from violence.
UN Women deputy executive director Anita Bhatia told an audience of 500 ministers, policy-makers and civil rights organisers from 35 countries, “Be angry. Ask your government for change.” Now this mind-set has to change. Violence against women is a human rights violation that hinders development and the achievement of the Sustainable Developmental Goals.
Acting to prevent all forms of sexual, physical and psychological violence against women must include addressing the root causes stemming from deeply ingrained gender inequalities, securing equal access to resources and reshaping social norms perpetuating men’s power over women. We need to stand up for our rights and the rights of others to avert violence against women and to raise awareness of its effects. India is a diverse and complex society with numerous opportunities to shape the global economy. To do this, UNDP (United Nation Development Programme) will continue to listen, believe and support survivors and support partners, implementing a zero-tolerance against violence against women.
Now, let us take a larger look around the globe. For example, is India the only state where authorities have not established adequate judicial and policing responses to rape? How such extreme forms of violence against women are addressed in other parts of the globe? On January 21st of 2013 year a brief report entitled “Guatemala’s War on Women” appeared at the Amnesty International’s web-site.
According to this report, not only is Guatemala the country with one of the highest rates of homicide, but the majority of the victims are women. “In 2012 alone, and according to official figures, around 560 women were murdered across the Central American country, many after being sexually assaulted.”
The investigation of these crimes is very ineffective and if girls and women victims do not come from a favourable background they are blamed by the police for being gang members and prostitutes to justify inaction. In a similar vein, a report from Nobel Women’s Initiative’s visit to Honduras, Mexico and Guatemala emphasized alarming trends in violence against women which is not only tolerated but even perpetrated by police forces. Corrupt and ineffective judicial system creates a climate of impunity and even the criminalisation of women human rights defenders.
Dr. Ekaterina Yahyaoui Krivenko is a Lecturer at the Irish Centre for Human Rights (ICHR), School of Law, National University of Ireland, Galway, her view
“Rather than regarding this recent Indian case as a proof of globalized human rights I would suggest that it should be used by human rights activists as a lesson about effectiveness and usefulness of an adequate use of the media in their struggle for human rights. The danger lies in the self-confidence which might result from the slogan of human right’s globalization.
If we want human rights to go and remain global we need to learn how to use the power of media and develop strategies which will bring about change and not leave cases forgotten.
Returning to Kant, in another treatise he affirms: “(The) hope for better times to come, without which an earnest desire to do something useful for the common good would never have inspired the human hear, has always influenced the activities of right-thinking people.” I believe the worldwide reaction to the Indian gang-rape case gives more hope thus inspiring more human hearts. However, we should be attentive to all human rights violations everywhere in order to promote truly common good and all-encompassing human rights.”
India is known to be one of the most dangerous countries in the world for women. Indian women are constantly in a state of high alert when alone on the streets, at work or in the markets. Rape is the most heinous crime committed to the woman. This crime is worse than a murder what is most important is changing people’s attitude and mentality towards women.
- Due to India’s predominantly patriarchal nature, domestic violence is known to be culturally acceptable.
- Studies reveal that majority of working women suffer domestic abuse from their husbands.
- A non-earning woman’s position is more vulnerable and dependent on their male partner as opposed to a woman who contributes financially to the household.
- Rampant poverty across the country is the main driver for low literacy rates and consequently, disempowerment and abuse among women.
- Pornography is the leading industry.
- Presenting women as saleable commodities, consumer culture is encouraged. Since women are reduced to mere bodies so they can be violated and ravished without any guilt.
- What we need is better policing, making public spaces safer for women, ensuring round the clock surveillance of isolated areas and deployment of police at all strategic points. It is not harsher punishments that will deter. It is the fear of being caught and not being spared.
A system that ensures that no accused can manipulate or manage to wriggle out of the clutches of law (with a settlement of marriage.) A system that deals with rape cases expeditiously from arrest till the execution of sentence. Law needs to be effective and the investigating agency and prosecution more proficient and efficient. We need enforcement, police accountability, a more sensitive [and] responsible criminal justice system, health care system, courts. We need to prevent rapes from happening. Prevention and not punishment is the solution and that requires concerted efforts on all.
Advocate Anamika Roy Choudhary
Research Head – Law Insider