A need for judiciary to feel the pulse of a mutating society

Anguished, distressed and tormented, as women enter arenas of justice, they bring with them immense courage, spirit and intrepidity. They hanker for a hopeful future of impartiality. Yet they are often met by the true blue system of justice. Judges, sitting on the elevated seat of power and position, find themselves submerged in a pool of orthodox and conservative thoughts. Their ever evolving legal knowledge and intellectual acuity, is eclipsed by ineradicable ideas of patriarchy and women’s role in society.

 The Constitution of India is arguably the only legal document, untouched by the rustic institutions of the forgotten days. The vision with which this supreme legislation was made still stands firmly representing the largest democracy. It promises equality, preservation of human integrity, dignity and a life of security.

The fundamentals of this exemplary legal writing, have been grossly violated by an obsolete reflection of human’s tattered social fabric.

 The Orissa High Court on 24 July 2020, granted bail to an accused, who married the rape survivor who had now attained the age of majority.

Within one month of taking the accused in custody, he was granted interim bail. During this period, when he was out on bail, he and the rape survivor “decided” to tie the knot.

 In a similar case in 2015, Orissa High Court allowed for the accused to marry the prosecutrix.

 In the same year, Madras High Court, allowed the accused out on bail to “mediate” with the victim.

 In a 2014 judgment, the Delhi High Court paved a similar path for the accused.

 The Gauhati High Court in 2016, in the case of Mohammad YahirulMaulana v State of Assam, quashed the proceedings that were initiated under section 376 of IPC, on the ground that the accused has rightfully married the victim.

The Court held that, “Since the charges of conviction in the case are bleak, ends of justice demands that they should be left at their will.  No useful purpose shall be served by dragging them to Court anymore and to compel the witness to come at the expense of the valuable judicial time.”

 In the case of AlaminMiah v State of Tripura, Orissa High Court, reduced the sentence of a man, convicted of throwing acid on his wife because he was “frustrated” by her refusal to return home.

 In a 2019 Judgment, the Kerala High Court laid down that, “The accused has sexual intercourse by obtaining consent with the promise of marriage, and when he subsequently legally marries, the charges can be quashed.”

In this case, the rapist married the survivor during trial. At this point, the prosecutrix was pregnant with a four month old child.

Following the multitude of precedents laid down by the Courts of India, the former priest of the Catholic church, Robin Vadakkumchery,  has filed an application of bail  to marry the rape survivor.  With strong opposition stating that, “it will open the door for many such men to enter into a compromise in order to escape the rigours of law.” The Court adjourned the matter till the 4^th of August.

With the Courts themselves laying the foundation of “compromise”, “settlement” and “adjustment”, why now, the Kerala High Court is hesitating in granting bail to the accused?

Is it the voices of citizens from the country or is it their transforming attitudes?

The latter is only a yearning for future.

 The act of coercion,societal pressure and undue influence over the woman, seems to have escaped the notice of Courts. Driven by the need to secure a woman’s modesty, her dignity and her honour, the Courts allow her nakedness to be shielded by the bond of marriage.The Courts have formed a bubble of idealism around them, believing marriage to take the edge of the suffering caused by men. The piousness of marriage, forms a mirage in the brutal reality that surrounds a woman’s life.

 The Courts need to follow a uniform pattern of adjudication, and not let their personal beliefs come as impediments in the way of justice.