Is marrying victim or member of victim’s family the way out of jail time?

Two recent SC decisions have placed domestic stability above the punishment due to a convicted man

June 08, 2022 11:01 pm | Updated 11:01 pm IST - NEW DELHI

Supreme court of India building in New Delhi, India.

Supreme court of India building in New Delhi, India. | Photo Credit: Getty Images/iStockphoto

Two recent decisions of the Supreme Court raise the question whether a convicted man can spare himself years of jail time by entering into what seems to be a rather opportune marriage with his victim or to a member of the victim's family.

In June, the apex court used its extraordinary power under Article 142 to release a man convicted of attempt to murder because he married his victim's sister while the case was still pending in the Madras High Court.

The top court noted that all the people involved were living in the same locality. The parties involved had approached the Supreme Court to set aside the conviction "in order to bring peace and in order to live cordially". The accused had spent just 18 months in jail.

"In the peculiar facts and circumstances of this case, particularly when there is a marriage within the families of the injured and the accused, we consider it a fit case wherein this court could exercise its power under Article 142 of the Constitution. We, therefore, permit the parties to compound the offence," the court observed in its order.

Convicted under POCSO Act

The second case, in May, also from Tamil Nadu, concerned a man who was convicted under the Protection of Children from Sexual Offences (POCSO) Act for raping his minor niece. He had later married her.

Taking note that the custom of avunculate marriage existed in Tamil Nadu, the apex court set aside his conviction, reasoning that it did not want to “disturb” their “marriage” and “happy family life”. The court said its decision was based, again, on the "peculiar facts and circumstances of the case" and should not be used as precedent.

In both cases, the top court seems to have placed the idea of domestic stability above the punishment due to a convicted man.

The National Commission for Women (NCW) has reportedly marked a 30% rise in crime against women in 2021 compared to 2020, with more than half of them against their life and dignity. The NCW had received nearly 31,000 complaints of crimes committed against women in 2021. Of the 30,864 complaints, a maximum of 11,013 were related to the right to live with dignity that takes into account the emotional abuse of women.

Outrage over report

Last year, the Supreme Court faced a flurry of outrage when the media reported then Chief Justice of India S.A. Bobde asking a rape accused's lawyer to find out whether his client would be willing to marry the victim or risk the prospect of going to jail. The lawyer had later come back to say that his client had declined as he was already married. A few days later, on International Women's Day, Justice (now retired) Bobde clarified that he was misquoted in the media.

On March 18, 2021, a verdict, authored by Justice S. Ravindra Bhat, had set aside a Madhya Pradesh High Court order granting bail to a suspected molester provided he visited his victim at her home and “allowed” her to tie a rakhi on him. In a scathing verdict, Justice Bhat had said judgments and orders continue to reflect “entrenched paternalistic and misogynistic attitudes” even after 70 years as a Republic.

“A woman cannot be herself in the society of the present day, which is an exclusively masculine society, with laws framed by men and with a judicial system that judges feminine conduct from a masculine point of view,” Justice Bhat had quoted Henrik Ibsen in exasperation in the apex court judgment.

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