Accused under POSCO granted bail on condition of marriage to victim: Allahabad HC

On October 10, 2022, a person accused of raping a minor girl, who was 17 years old, under the POCSO act was granted bail by the Allahabad High Court on the condition that he marry her within one month and award her and his child all of his rights as wife and daughter. The prosecutrix and her father’s stance that they had “no objections” to the accused’s release on bail served as the foundation for the decision of the Bench of Justice Dinesh Kumar Singh to grant him bail. The Court also noted the fact that the Girl had already delivered a child from the accused applicant.

In the facts of the present case, the prosecuterix stated that she was allegedly lured away by the accused-applicant in March 2022 when she was just 17 years old, according to charges made under Sections 363, 366, and 376 of the IPC and Sections 3/4 of the POCSO Act. After that, the prosecutrix gave birth to a girl.

The prosecutrix and her father stated before the court that they had no objections if the accused-applicant was granted bail as long as he married the prosecutrix in accordance with Hindu rites and rituals, had their marriage officially recognised, and granted all rights to prosecutrix and the child as his wife and daughter.

However, bail has been granted on condition that after he is released from jail on bail, he will marry the prosecutrix within 15 days of the date of release and have the marriage registered before the appropriate officer within a month of the date of the marriage. He will also give ‘full rights to the prosecutrix and his child as wife and daughter’.

The order can be read here.  

This present order comes after a plethora of judgments have been passed by various courts in the recent times, where the judges are finding creative ways to interpret provisions criminalising and penalising offence of sexual assault against women and children. These judgments leave the victim with no agency, apart from diluting substantively the notion of justice.

For the longest time, deeply patriarchal notion that act of sexual assault rather than be seen as an act of violence and dominance by a man/ accused. Is something that ‘just happens’ to the woman/child/survivor or brought on because of dress or behaviour. An extension of this, is that the Survivor is treated as one who needs to be ‘saved’ or ‘redeemed’ through marriage, that too by the person who committed the crime.  Deeply prejudicial notions to independent agency and justice are also reflected within the judiciary. Often even in the past, in cases where the accused where convicted, the tone deaf language and approach used in the judgments shatters the objective behind such convictions.

The Protection of Children from Sexual Offenses Act, 2012, often known as the POCSO Act, is gender-neutral and acknowledges that both boys and girls can be survivors of sexual abuse. The Act contains stringent penalties attached to each of the offenses mentioned and substantially enlarged the scope of what constitutes a sexual offense against a child. It also added penalties for those in positions of trust, such as public employees, academic staff, and police officers, and expanded the definition of sexual assault to include both mild and severe penetrative assault.

The amended law on sexual assault, 2013, (Criminal Law Amendment Act, 2013), followed the nationwide outcry on the Nirbhaya mass rape and also known as the Nirbhaya Act, it amended the law around rape/sexual offences (sexual assault) under the Indian penal Code (IPC), Indian Evidence Act and Code of Criminal Procedure (CrPC). Gender neutral, the amendments not only included within offences for sexual assault, offences like acid attacks, voyeuristic crimes, sexual harassment at the workplace but also re-define sexual assault/ rape from the arcane limited definition of ‘penetration.’

Both under POSCO and the Nirbhaya Act, while some judicial pronouncements have reflected this refined understanding of reality reflected in the new laws, every so often, a judgement or judgements pronounced even by India’s constitutional courts (High Courts or the Supreme Court) are reflective of the entrenched archaic and patronizing views even within the Indian judiciary.

The question that arises is, who has given the courts the power to suggest any compromise (marriage or any other) between the survivor and the accused?

Problematic judgments in cases of sexual offences against Women and Children:

1. In the year 2020, Madhya Pradesh High Court released a person, apprehended for outraging the modesty of a woman, on bail provided that he visits the house of the complainant and requests her to tie the Rakhi band to him “with the promise to protect her to the best of his ability for all times to come.” This decision was given in a matter whereby the applicant as a neighbour had entered the house of the complainant and caught hold of the hand of the complainant attempting to outrage her modesty.

The court bail order stated: “(i) the applicant along with his wife shall visit the house of the complainant with Rakhi thread/band on 03rd August, 2020 at 11:00 am with a box of sweets and request the complainant Sarda Bai to tie the Rakhi band to him with the promise to protect her to the best of his ability for all times to come. He shall also tender Rs. 11,000/- (Rs. Eleven Thousand Only) to the complainant as the customary ritual usually offered by the brothers to sisters on such occasion and shall also seek her blessings. The applicant shall also tender Rs. 5,000/- to the son of the complainant-Vishal for purchase of clothes and sweets”

Pursuant to this, Supreme Court advocate Aparna Bhat and eight other women lawyers challenged this bail order before the Apex Court. The Supreme Court, while overturning the bail conditions in the present case, framed various guidelines. One of the guildelines were to ensure that bail conditions must precisely adhere to the stipulations of the Cr.P.C., and the order shall not represent patriarchal attitudes toward women. Any offer to the accused and victim for a compromise, such as getting married or mandating mediation, should be ignored since it is outside the court’s authority.

The petition filed by Aparna Bhat and others can be read here.

The order can be read here.

2. The Apex Court has often –though not always–looked askance at cavalier attitude of the lower courts and attempted course correction. It has been established in a plethora of judgments like the State of M.P v. Madanlal that compromise must never be brought into the picture while dealing with rape. But in the year 2021, the then CJI, Sharad Arvind Bobde, offered the POCSO accused a chance for bail if he agrees to marry the minor survivor. In the case of Mohit Subash Chavan v. State of Maharashtra was met with consternation and criticism after he reportedly asked the accused, a government servant, whether he would be willing to marry the victim, a minor, after she was raped. “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,” the then Chief Justice of India S.A. Bobde had reportedly told the accused person’s lawyer.[1]

3. The controversial case of the Bombay High Court, single bench, Justice Pushpa V. Ganediwala when she acquitted a 32-year-old man of charges under Section 7 and 8 of the POCSO Act, holding that the offence of sexual assault was not made out because there was no “skin-to-skin” contact, bears mention. Sexual assault is defined in Section 7 of the POCSO as any non-penetrative sexual contact with the victim survivor, similarly generated outrage. In this case, the accused-appellant was accused of “pressing the breast” of the 12 – year-old prosecuterix, a fact that the prosecution demonstrated by adducing both circumstantial and direct evidence.

Despite this, however, the Court held that Section 7 conditions were not met because the survivor’s garments were not removed, and the appellant was unable to remove her underpants because she screamed, and bolted the room from the outside when the assailant accused sought to do so. The act of the appellant would, at best, be an act of “outraging the modesty of a woman” as defined in Section 354 of the IPC, according to the Court. The judge further stated that the punishment imposed under Section 8 of the POCSO, which prescribes a punishment for a term of 3-5 years and fine, for the offence outlined in Section 7 is “disproportionate” when compared to the gravity of the act and hence upheld the conviction only under Section 354, IPC. This order was, again, following sharp criticism and outrage, stayed by the Supreme Court.

The order can be read here.  

4. In another incident, the Madhya Pradesh High Court granted two-months bail to an accused in a rape case to enable him to ‘marry the victim’. The victim complainant had filed a rape case against the accused under sections 376 (2) (n) and 506 of the Indian Penal Code and sections 3(I), (W-II), 3(2)(V) and 3(2)(V-a) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Meanwhile, in another rape case in the year 2021, the Kerala High Court observed that when the magnitude of the rape is so grave and heinous to shock the sense of justice, a settlement between the victim and accused and a marriage subsequently between them should not be matters for consideration to quash the proceedings against the accused. This later judgement holds out some hope.

5 In the year 2020, Madras High Court judgment (Madurai Bench), the accused was granted bail after impregnating a minor girl as he said he was willing to marry the victim once she attains majority. The FIR in the case was filed under Sections 5(l), 5(n), 5(j)(ii) and 6 of the POCSO Act. The judgment noted that if the petitioner fails to register the marriage, the respondent police could proceed against him in accordance with the law. The accused told the court that he and the victim were closely related. According to him, they fell in love and had sexual relations.

Clearly, even Judges are not the ‘outside other’ but part of a very patriarchal society.  Judges come from the social location of caste, class (presumably upper) household within this. Still, given by serious attempts in the legislative process –influenced by voices from the women’s movement –to affect a shift and change in attitude, it is crucial that the agency and autonomy of the woman needs to be central to all interventions and judgments.

Love Relationship Angle in POCSO cases:

Even though, in the aims and objects of this Act, the “consent of the minor child” is not supposed to determine facts or application of the law, courts, while adjudicating have been giving age some consideration.

In a judgment passed by the Delhi High Court in the year 2020, in the matter of Dharmander Singh @ Saheb vs State, bail was granted to the accused while taking into account the potential for a reciprocal physical contact between the underage victim and the accused. The age difference between the two, the physical intimacy shared between the accused and the prosecutrix, as well as lack of brutality or violence were also taken in factor.

In a different instance, in the year 2021, the Meghalaya High Court ruled that although a minor’s consent is not legally legitimate, it is nonetheless important to keep in mind while the court is debating a bail request. The said case was of a minor and a nineteen year old who were involved physically. The court had considered the factor of two teens in “romantic love” while granting bail to the accused.

In yet another “consensual” relationship case, the Calcutta High Court cleared the defendant by interpreting a POCSO Act clause so that it no longer applied to situations in which sexual activity was voluntary. In this instance, the high court noted that the Act was created to provide protection to innocent children from sexual offenses and that a strict reading of its provisions would only turn it into a weapon for exploitation of the legal system.

In the year 2021, the Madras High Court had observed that the POCSO Act is not meant to punish young people in love relationships. The court acknowledged that a statute intended to protect and bring justice to victims and survivors of child abuse can be abused while also dismissing the criminal charges brought against the defendants in this case. The court observed that a significant portion of cases brought under the POCSO Act appeared to be the result of grievances filed by the families of teenagers participating in romantic relationships, which was never the law’s intended goal.

In February 2022, the Supreme Court had set aside the Jharkhand High Court’s order granting bail to an accused under section 376, IPC and section 6, POCSO. The Apex Court had opined that once prima facie it appears that the prosecutrix was a minor, the grounds that there was a “love affair” between her and the accused and the accused’s alleged refusal to marry would be extraneous for bail.

Pursuant to this judgment, the Karnataka High Court, in August 2022, the Karnataka high court allowed a compromise in a case registered under POCSO considering that the girl who had been allegedly sexually assaulted had married the accused during pendency of the case and also had consented to quashing of the proceedings. The girl was 17 and the accused petitioner was 20 years old when her father registered a POCSO complaint on March 6, 2019. On October 11, 2019, the girl deposed that the acts between her and the petitioner were consensual. They submitted a memo before the high court stating that they mutually agreed to compound the offences alleged and got legally married on November 9, 2020, the very day when he was released on bail after 18 months in judicial custody.

It is the cases such as those listed and analysed here that reflect the contradictions India faces. The fact of each case and the application of the law, be it POSCO or the amended Law on Sexual Assault, the imbalance in understanding of not just the crimes listed but the societal and familial circumstances under which abuse and assault occur, renders a flawed result. Courts then, do not become the automatic—and necessary dispensers of justice – but the witting or unwitting perpetrators of existing attitudes towards women, girls and minors.

The “skin-to-skin” judgment created had, then, resulted in a massive outrage all over the country. 

In the year 2020, The Karnataka High Court noted that it was “unbecoming of an Indian woman” to sleep after she is “ravished”, while granting a pre-arrest bail to a man accused of rape, cheating and criminal intimidation. Prior to this, in the year 2017, the Delhi High Court had overturned a rape conviction against film director Mahmood Farooqui, ruling that a “feeble no” can signal consent, especially in cases where the alleged victim is well-educated.

There have been numerous judgments in the recent past wherein judges have given questionable solutions while dealing with cases of sexual offences. Taking forward the problematic patriarchal notion of attaching a woman’s honor and identity to her body, the judiciary has been prone to giving judgments wherein the accused is given the chance to “absolve” their crime by marrying the victim. Is this what the amended rape laws are country were legislated for? Is it not enough that the survivor has lost her autonomy once while they are being subjected to such crimes, to be once more dealt such a blow from institutions of judgement delivery?

Worse still, if examples these continue to be set, wherein punishment, conviction and or acquittal are at the mercy of attitudinal flaws among judges, less and less survivors or families may be willing to come forward with complaints. While the Supreme Court has often stayed some of the most baffling of such orders given by the high courts, there have been flaws in the apex court’s jurisprudence on this issue too. An urgent need of better judicial training and increased sensitivity when it comes to cases of sexual violence and assault cannot be under-emphasised. Crimes committed against children and women are on the rise and it is essential for us to ensure that everything is done to provide the survivors justice. 

The victims of sexual abuse have always been blamed by Indian society. Women have been questioned repeatedly about their behaviour, clothing choices, attitude, and when they plan to leave their homes. During trials too, judges have frequently reinforced this practice by questioning the victim and sometimes making remarks that stereotype particular behaviour and threaten to disrupt the trial.

Some evidence points to judges’ handling of rape cases reflecting this outmoded perspective. The idea that women need protection and that an unintended pregnancy brought on by rape would wreck their lives is another important justification for using this strategy. The survivor’s parents ultimately give in to pressure to maintain their social standing in order to protect the female’s honor and dignity. Given also that marital rape is not a crime in India, solemnizing rape via marriage has negative effects such as marital rape and violence after marriage. It also gives accused rapists a way to evade the law. The shocking injustice committed by the courts is demonstrated by subjecting the sufferer to more emotional agony.