Speaking at a conference called on the issue of justice to and rehabilitation of rape victims, the Chief Justice of India, Mr KG Balakrishnan, made the observation that "due regard" be given to the "personal autonomy" of a woman who may want to marry her rapist. As he explained, social compulsions and the issue of paternity of a child born of such "forced intercourse" may cause some women to agree to withdraw charges against their assailants and instead marry them. Of course, what sort of a father and husband such a man would make is quite another matter. In theory, the Chief Justice has not said anything objectionable — it would be absurd to deny social realities as they exist, especially beyond our cities and towns. Moreover, if an adult woman wants to marry an adult man, whatever his previous misconduct, society has to accept it. The danger is this does not necessarily serve the purpose of the law. With the victim and her family forced or persuaded into withdrawing their complaint and not providing crucial evidence in exchange of what could prove to be a sham marriage, the rapist could simply get away. Without deterrent action, a criminal would be out on the streets and potentially a danger to other women. The fact that he is now married to a former victim and is the father of her child would not necessarily mitigate his essential criminality. As far as the legal system is concerned, this man would still need to be punished.
True, India is an immensely patriarchal society. In large parts of the country, women simply don't have the freedom and individual liberty that is their natural and constitutional right. It is also a fair assumption that a victim of rape, other than in enlightened sections of society, just does not have the family and social support structure to recover from the psychological trauma and get on with life. Even marriage becomes a big question mark. In these circumstances, especially if the assailant and his family make what appears to be a reasonable offer, the girl is sometimes nudged into accepting the idea of becoming the wife of the very man who violated her honour and dignity. While being completely sensitive to this situation, the judiciary has to, however, uphold the law and ensure quick and effective punishment for what is the most bestial of all human crimes. A murder cannot be compensated, much less forgiven, if the murderer agrees to pay his victim's dependants a lifelong person. That is not justice, it is barter. It can be decreed by illegitimate khap panchayats and qazi courts but certainly cannot be approbated by the Supreme Court of India. It would be best if the issue of legal remedy for a rape victim were kept entirely separate from the provision of societal justice, relief and rehabilitation. The two are different and must remain different even if the villain (and convict) in the first becomes the husband in the second.
One of the problems with dealing with incidents of rape and curbing this crime in India has been an abysmally low rate of conviction. In fact, suggestions that rape be made punishable by death have been contested precisely on the grounds that the level of evidence required in case of a capital crime is extraordinarily high and conviction will be rendered even more difficult. If it becomes apparent that an offer of marriage will become a consideration in any manner before the court, the chances of confusing the course of evidencegathering will only rise. Conviction rates, as Mr Balakrishnan must know, will suffer that much more.
