New Delhi: The Kerala high court quashed charges of sexual assault against a 22-year-old man, including those filed under the Protection of Children from Sexual Offences (POCSO) Act, citing that he was now married to the survivor, LiveLaw has reported.
Stating that there is no point pursuing the case as the parties involved settled the dispute among themselves and also entered into a matrimonial relationship, the high court said quashing the charges against the accused “does not hamper public interest.”
“The Hon’ble Supreme Court has held that in such cases courts should always take a pragmatic view. When the parties themselves settle the dispute and approach the high court for quashing the proceedings, the High Court cannot refuse to invoke its inherent jurisdiction under Section 482 of CrPC,” the court observed.
Although it is not clear exactly which direction of the Supreme Court the high court judge was referring to, in March 2021, former Chief Justice S.A. Bobde had asked a man whether he would marry the woman who had accused him of raping her when she was a minor. “If you want to marry we can help you. If not, you lose your job and go to jail. You seduced the girl, raped her,” CJI Bobde had told the accused. Later, he had said that his words had been misreported.
A sexual assault case was filed against the man question in February 2019 after the victim’s father approached the police regarding his missing minor daughter, then aged 17. The police charged the man with kidnapping, slavery and house trespass under various sections of the Indian Penal Code (IPC). He was also charged under various sections of the POCSO Act for repeatedly assaulting the minor.
As the case was still pending, the man and the rape survivor had a wedding in November 2020, after the latter attained major status. Stating that they were now living together as husband and wife, the man’s counsel moved court to quash charges against his client. The man presented documents to confirm their marriage. He also produced an affidavit from the woman and his father, the complainant, of them having “no objection” to the plea.
The court observed that it would be futile to continue the proceedings, as material witnesses would not support the case. “The well-being of the couple necessitated termination of proceedings against the man,” the court added.
The practice of courts endorsing marriages between those accused of sexual assault and their victims has for long been much criticised.
In an analysis for The Wire, Albertina Almeida had noted:
“Women’s groups and advocates and child rights activists in India generally converge on the point that marrying the survivor is a time tested ploy by rapists to escape conviction or the prolonged sentence. This tactic takes advantage of cultural issues around rape, where raped women are, to this day, looked upon as jinda lash – living dead.”
Contrary to what the Kerala high court held and also contrary to the Supreme Court’s comment, Almeida cited that the Supreme Court had once been critical of the issue, noting that “religion, race, caste, economic or social status of the accused or victim or the long pendency of the criminal trial or offer of the rapist to marry the victim or the victim is married and settled in life cannot be construed as special factors for reducing the sentence prescribed by the statute.”