The rights of the rapist-as-husband are a macabre gift of modern Indian law, to be framed along with other celebratory pictures of patriarchal justice in the archives of our male-dominated courts
By granting interim bail to a rape accused in order to arrange mediation between him and his victim, the Madras High Court has formalised the routine but illegal practice of out-of-court settlements most commonly known as ‘compromise’.
Rape is a non-compoundable crime. This means that opposing parties cannot bargain and settle out of court, thereby affecting the outcome of the trial. Although appellate judges have ruled that individuals cannot compromise rape cases, rape cases are routinely compromised in the courts.
In 2013, the Supreme Court refused to mitigate the sentence of a rapist on the basis of a compromise, observing that ‘rape is a non-compoundable offence’ and it ‘is not a matter to be left for the parties to compromise and settle’. Similarly, the Supreme Court has held that the ‘offer of the rapist to marry the victim’ is not a ‘relevant reason’ to mitigate a sentence.
Courts have also declined to grant bail on the grounds of compromise. For instance, in the case of the gang rape of a pregnant woman, the Patna High Court rejected the defence argument that bail must be granted since a compromise petition had been filed in the Chief Judicial Magistrate’s court. The Delhi High Court has also decried the legal strategy of appealing to the courts to quash a rape case after a compromise.
The reality of what a compromise means is brought home by several judgments which note how the survivor or a relative committed suicide or was murdered for resisting a settlement with her rapist. Family members, community leaders, panchayats, lawyers or even the police routinely initiate compromises – putting enormous pressure on the victim to turn hostile. In one Himachal Pradesh case, the police pressurised the complainant to compromise, and once the case was publicised, her father committed suicide. Commenting on the Central Bureau of Investigation, the Kerala High Court has observed that ‘the investigators appear to be more interested in persuading the petitioner to settle and compromise the dispute rather than to ensure that the offenders are brought to book’. Compromise masks systemic terror, intimidation and pressure.
One set of compromise cases rests on the idea that an offer to marry the rape victim is grounds for the court to grant bail, quash a case or reduce the sentence. These cases address different kinds of subjectivities than the love affairs some times criminalised as rape.
The idea that a rape survivor must be married to the rape accused is premised on the assumption that rape is a form of social death. It is seen as an appropriate form of social rehabilitation for a woman to marry the very man who raped her.
Despite the Supreme Court judgments on the illegality of compromise, the latest Madras High Court order directs rape cases into the system of alternate dispute resolution (ADR) with the explicit aim of arranging marriage.
When courts arrange marriages as if they were marriage brokers, they inaugurate a new form of marriage, sociologically speaking. These newer forms of socio-legal marriages, which may be characterized as “compromise marriages”, amount to legally-mandated forced marriages. “Compromise marriages” are a comprehensive violation of a woman’s right to be human, her right to life and dignity; and freedom of choice and expression.
The excited horror that the victim is an unwed mother leads the Madras High Court to grant bail to the accused and arrange the grotesque performance of mediation. The court is not concerned with the wishes of the victim, who according to one interview categorically says that she loathes the idea of marrying the man who raped her.“ He is coming for a compromise so that he can be out of prison. I hate the very sight of him and how can I live with him as man and wife?”, she said.
The court is not concerned abut whether the accused would rape his victim again, if married to her; nor is there concern about the safety of the child in the care of a rapacious father.
No matter what danger a child may face from a rapacious father, the single most important thing on the mind of some judges seems to be his or her father’s name or patrilineage. For we are told that social order would descend into chaos if unwed mothers were given dignity, or if their children were to inherit their mother’s name or matrilineage.
Given that marital rape is not a crime since our courts and politicians believe marriage is a sacrament, the rape accused has a license to rape the victim repeatedly after the “compromise marriage”. The law protects him against future prosecution.
To treat a rape case as an ADR case means a crime is equated to a private dispute between two parties. How can a non-compoundable criminal offence be directed to ADR style mediation? Here a rape case is treated as if it were a matrimonial dispute in a family court.
This is not an illustration of what Marc Galanter calls the “debased informalism” of our legal system. Rather it is an outrageous illustration of the privatisation of state law such that the distinction between formal and informal state law is collapsed. In place of the rule of law, you see the birth of rule of custom – where custom is what judges invent in the name of patriarchal “justice”. Such state customs displace criminal and constitutional law using the court’s inherent jurisdiction to do justice.
Instead of enhancing the quality of life for rape survivors, the Madras High Court upholds patriarchal notions of justice, which are shot through with illegible references to religion thoroughly displacing constitutional law.
Forced into marriage, where rights to complain against sexual abuse are suspended, marriage to a rapist is solely constituted through the desire and the right of the husband over the traumatised mind and body of the wife-victim. The rights of the rapist-as-husband are then a macabre gift of modern Indian law, to be framed along with other celebratory pictures of patriarchal justice in the archives of our male-dominated courts.
Pratiksha Baxi is associate professor at the Centre for the Study of Law and Governance, Jawaharlal Nehru University. She is the author of Public Secrets of Law: Rape Trials in India (2014, OUP)