Updated: Aug 26, 2020
New Delhi: On 16 June 2020, convicted rapist and Kerala ex-priest Robin Vadakkumchery sought a two-month bail from the Kerala High Court to marry the girl he had raped and impregnated when she was 16.
The 52-year-old former clergyman offered to marry the survivor now that she is of legal age “to ensure the welfare of the child”, he said in his bail petition. The girl, now 20, and her parents reportedly agreed to the marriage.
Vadakkumchery’s plea, pending in the High Court, is not without precedent. Rape survivors are often coerced into marriage with their rapists across India, and this occurs with the support of law-enforcement agencies, panchayats and parents.
On 24 July, the Orissa High Court granted bail to a rape accused, arrested under a Protection of Children from Sexual Offences (POCSO) case, for marrying the girl he had raped, now that was an adult. They married in June, when the accused was released on an interim 30-day bail.
In another case, village elders and a 14-year-old rape survivor’s parents in Bareilly, Uttar Pradesh, married the girl to the man who allegedly raped her and impregnated her in 2017. The girl’s parents are daily wage workers, according to media reports, and could not afford to take care of her and her child. Their requests of financial aid from the local administration were ignored.
How Rapes Cases End In Marriage
There are several circumstances where rape survivors end up marrying the men who raped them, said Geeta Ramaseshan, senior lawyer of the Madras High Court.
In the first, a couple is involved in a consensual relationship. But because they are of different castes or the parents do not accept the relationship, they accuse the man of rape, particularly when the daughter is a minor.
“During the course of the trial, the man agrees to marry her,” said Ramaseshan. There could be an element of consensual sex with a promise of marriage. The girl agrees that she wanted marriage.”
Then, there are rape cases under the controversial “false promise to marry” category, where perpetrators convince the survivors to have sex with them by promising to marry them, a promise they do not honour.
In 2013, data journalist Rukmini Shrinivasan examined 460 cases under trial in New Delhi’s district courts. Of these, 109 cases were filed under ‘false promise to marry’ and only 12 cases resulted in conviction out of all the 460 cases.
Shrinivasan’s study also found that more than a third cases of rape were those in which young people had engaged in consensual sex outside of marriage. These cases had been filed by the parents of minor daughters.
“Police are reluctant to file a first information report (FIR) in such cases but now the Supreme Court guidelines and legislation are so stringent that the police have to comply and register the case,” said Ravi Kant, president of the NGO Shakti Vahini.
The accused then “goes to jail for three-four months after which a settlement happens and the survivor flips her statement in court, said Ravi Kant, explaining that many “false promise to marry” cases and live-in cases, reach either a monetary settlement or a marriage and it reflects on the legal system.
But it is a third category of rape cases where pressure to marry the rapist is both insidious and outside the purview of law.
A judge might feel that the best solution to a rape case, particularly one that results in an unwanted pregnancy, is marriage. Judges get swayed by arguments of stigma.
“What will happen to the woman? Who will take care of her?” said Ramaseshan. “These stigmas are strengthened if a child is born due to rape. In such cases when the man offers to marry her or agrees to marry her because the judge has asked, it is only to escape the punishment.”
But, she noted, “rape is not an offence that can be settled and such offers from courts are clearly not sustainable”.
Worse, when such a practice is adopted in one case, there is danger of it becoming a norm in other cases, said Suman Chakravarti, the public prosecutor in the Vadakkumchery rape case.
The marry-your-rapist-to-get-out-of-jail-free card is not recognised under any law. Yet, it continues formally within courts and informally within families and village councils. In many cases marriage is a rescue ploy for convicted or accused rapists to evade punishment. “A court of law cannot be a part of such settlements,” said Chakravarti.
Marriage As A Solution To ‘Lost Honour’
In a false-promise-to marry rape case under trial in a Delhi court, a 23-year-old woman accused a man of raping her on the pretext of marrying her in 2017. She was only 19 then.
The woman told Article 14 that she immediately called the women’s helpline and Delhi Commission for Women (DCW) helpline to file a complaint against the accused. “When I went to the police station to register a complaint against him, he told the police officials that he will marry me in two years.” she said.
“He started to cry in front of the Assistant Commissioner of Police (ACP) then she asked me what I wanted, to which I said I want justice. She then told me if I wanted to live respectfully in the society then I must marry him. So I agreed and didn’t file the complaint,” she said. “I was very strong at that time and I was also willing to fight the case but he and his family forced me, threatened to beat my parents if I didn’t agree to marry him.”
They finally got married in June 2019. But after two months of marriage, the man left the survivor telling her he had only married her to escape rape charges, she said. The woman is now fighting a case under section 498A (cruelty by husband or his family members) of the Indian Penal Code, 1860.
“Only know how I live with this stain on mine and my family’s honour,” said the survivor. “All my relatives and neighbours know that I was raped by my husband. I am only living for my parents who support me fully otherwise I have no motivation to live when I know that I have to fight everyday to get justice.”
Very often, village panchayats also push for marriage following a rape.
“Village elders and the relatives of the rape survivor pressurize her to marry her perpetrator,” said Ravi Kant. “This is inhuman and unacceptable. The government should generate awareness on this issue because this scenario often plays out on the ground level and such cases reach settlement without the intervention of the law.”
The government should also frame legislation in this regard which will make such marriages illegal, he said.
Patriarchal societies stigmatise rape to the extent that a woman loses her ‘honour’ and purpose of life if she is raped. Even the courts are not immune to the idea of the ‘fallen’ rape survivor (see Article 14’s Courts’ Misogynistic Rules For Rape Survivors) and fall into stereotypes of the ‘hapless rape victim’ when passing judgments.
“It becomes a matter of shame for the woman when the neighbourhood and her relatives find out she has been raped,” said lawyer Seema Sammridhi. “In our society, people continue to have such regressive thoughts that a woman who has been raped is ‘impure’. Such backward ideas leave women with no choice but to accept her rapist as her husband,” she said.
In rural areas especially, the stigma of rape only harms the survivor’s life as members of the panchayat downplay the heinous crime of rape as just a ‘mistake’ done by the man. Hence they believe that the appropriate “punishment” for him would be to take care of the survivor by marrying her.
“There is no assistance in rehabilitating rape survivors from the government so that they can have better agency over themselves,” said Mariam Dhwale, general secretary at the All India Democratic Women’s Association (AIDWA).
“It doesn’t matter if the survivor marries her rapist because her life anyway gets distorted. What’s the guarantee of security in such a case when the survivor is forced to marry a criminal? Does the court even have any mechanism to check whether the survivor is leading a good life or not?”
While rape crimes and false-promise-to-marry cases are majorly the crimes where marriages between the rape survivor and her rapist to defend them from punishment is common, a similar phenomenon has also been seen in an acid attack case. In 2018, the Bombay High Court freed an acid attacker who was sentenced to life imprisonment after he married the woman he threw acid on. The attacker had spent eight years in jail after which he was set free by the court.
Safeguarding The Rights Of The Survivor
The ‘advise’ of police and courts to rape survivors to marry their rapists, must be documented and recorded in court, said Ramaseshan.
“The judge will have to ask her whether the settlement is of her own will. I have seen judges ask this of the survivor in their chambers with no one else present. Women in a few instances have told the court that they are not willing but are being compelled by their families,” she said.
Another solution is to increase training sessions on gender, patriarchy and caste tensions. “Many judges and police are aware of these issues but choose to ignore it. During one training for police inspectors, when I raised this issue I was told that if such marriages do not take place, there will be caste riots in the area. Such tensions and complexities must be addressed,” said Ramaseshan.
Oversight is perhaps the most important aspect of protecting rape survivors. “Human rights lawyers and NGOs working on women’s rights must follow up the case at all stages to see that there is no injustice,” added Ramaseshan.
Amending rape law to ban all such ‘settlements in rape cases is not a viable option, said Chakravarti. “The survivor is always free to marry any person, including the accused,” he said. “It depends on the facts and circumstances of each case. However, such marriage cannot be used against the prosecution.”
“The prosecution for rape is for the offence committed which the accused will have to face at any rate,” said Chakravarti. “By contracting into a marriage with the survivor, one should not get the impression that he can escape for good.”
But in several cases like the Odisha rape case, bail was granted conditional to the marriage between the survivor and the accused rapist. India may have strict rape laws and the POCSO Act, which may prescribe death as punishment for rape, but the conviction rate is 27.2%, according to the 2018 NCRB report mentioned earlier, because of such settlements and compromise.
(Poorvi Gupta is an independent journalist and she writes mainly on gender justice, women in politics and culture. )