AIDWA ISSUED a statement on the remarks of the CJI on March 2, 2021, and termed it,  ‘very disturbing’.

The CJI’s remarks came in a case in Supreme Court, titled, Mohit Subhash Chavan versus State of Maharashtra.

The CJI asked the petitioner-whether he is ready to marry the girl who he has raped and seduced. It has also been reported and the Bombay High Court (Aurangabad Bench) has noted that the petitioner and his family are so influential that they made the girl and her mother to execute writing on a stamp paper of Rs 500 that the petitioner and the victim had an affair and they both had indulged in sex with her consent.

The Aurangabad bench of the Bombay High Court had rightly termed the actions of the rapist as ‘atrocious’ and dismissed his application for bail. The AIDWA strongly feels that the Supreme Court should not have given time to the alleged rapist for filing a regular bail application.

Rape can never be excused or legitimised by an offer of marriage as an offer of marriage only minimises the violence and trauma faced by the girl/woman during the rape. In our society, there are people who think that rape brings shame and ignominy to a girl and feel that her honour can be saved if she is married to the rapist. Such thinking is extremely regressive, and it does not take into account the situation of the woman/girl who has undergone this violent act. To marry her in these cases would be to inflict further violence on her and to further violate her.

It has also been reported in another case that the CJI has asked a question whether rape can ever occur within a marriage. AIDWA finds this remark also deeply disturbing as for years AIDWA and other women’s groups have been asking for marital rape to be recognised as an offence under 376 IPC and for the exception of marital rape to be removed from IPC. Sexual and other violence within marriage is unacceptable in any society and our law partially has recognised this by the introduction of Section 498A in the IPC as far back as 1983 and in the Domestic Violence Act. AIDWA feels that conservative and patriarchal notions that exist in the sections of the Indian criminal justice system ought to be weeded out and for that gender sensitisation is a must.

Withdraw your Comments CJI: Brinda Karat

IN a letter written to the chief justice of India(CJI) on March 2, 2021, Brinda Karat, Polit Bureau Member of the CPI(M) has asked the CJI to withdraw his comments in two cases, while hearing petitions in the Supreme Court.

The first is in the case of a bail petition appeal by the rapist of a then minor girl student of Class 9, against the decision of the Aurangabad bench of the Maharashtra High Court which denied him bail, overturning the lower court’s decision.   It is reported, “……. CJI Bobde asked counsel for the petitioner, Will you marry her? To this, the advocate replied, I will take instructions. You should have thought before seducing and raping the young girl. You knew you are a government servant, was CJI Bobde's response. We are not forcing you to marry. Let us know if you will. Otherwise, you will say we are forcing you to marry her, the CJI went on to observe. When the matter was heard again shortly thereafter, counsel for the petitioner said, I wanted to marry her. But she refused. Now I cannot, as I am already married.”

The Court granted interim protection for four weeks to the rapist and asked him to apply for regular bail.

Brinda Karat pointed out that these questions, words and actions have serious implications in granting bail in cases of rape of minors. She asked the CJI: “Please reconsider and withdraw these comments and questions and the bail you have granted to the rapist. Please uphold the judgment of the Aurangabad High Court which rules that bail granted to him by the lower court was ‘atrocious’.”

In this letter, Brinda Karat wrote that the girl was gagged and raped by this criminal when she was just 16 years old. He repeated his crime 10-12 times. The girl tried to commit suicide. Does this show consent? In any case, in the case of a minor, as this girl was, the law is clear that there is no issue of consent.

She asked a flurry of questions from the CJI- what about the victim, now 18 and what effect such a question will have on her? Is her suffering, her trauma of no consequence, of no value?  Rape victims are not robots whose thoughts and feelings are under the remote control of others. Regardless of what her parents may have wanted the girl had reportedly refused the suggestion of marriage.

By putting such questions to a rapist, the message given is that a rapist can escape jail if after the crime he “agrees” to marry his victim whether she wants to or not. There is a prevailing retrograde social approach that the victim of rape is a “bad” woman and if the rapist marries her, she gains respectability in the eyes of society. Comments of the apex court should not give the impression of supporting such approaches.

In a crime of rape, the processes of justice must keep the interests of the victim at the centre.  Unfortunately, in this case, the opposite has happened.

The second case relates to the comments reportedly made in the case of a bail petition hearing of a man who had sexual intercourse with a woman on the false promise that he would marry her. Under the law, this constitutes rape. However, it is reported: “The Supreme Court on Monday stayed the arrest of a man accused of rape by his former partner, asking `... however brutal the husband is... when two people (are) living as husband and wife... can sexual intercourse between them be called rape?’ Brinda wrote to the CJI and said: Rape is determined not by a marriage certificate but whether or not the woman consented to have sexual intercourse.  The comments reportedly made justify brutality and cause harm to the woman.

“As one who has fought as part of women’s movements both outside and within Parliament for changes in laws and perceptions regarding rape victims and their rights,  I believe that the comments made by the court, constitute a setback for the struggle for justice,”  Brinda Karat commented.

She appealed to the CJI to consider this letter as a request to withdraw the comments and decisions. Women hope that the power and strength of the highest court is used to help victims of sexual assault, not the perpetrators, even more so when the victims are minors.