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A Bench led by Chief Justice Bobde, while hearing a matter of (1) cancellation of bail to an accused of Rape against minor (2) Quashing of FIR alleging Rape where the accused cohabited with the woman on a false pretext of marriage, made certain remarks which has caught attention of all. Brinda Karat, a politician and women rights activist has written to the CJI seeking withdrawal of the said comments and orders passed therein, stating, “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.”

In the first matter as aforementioned, the petitioner is a public servant accused of committing Rape against a minor, aged 16 years. The Learned Sessions Court had allowed an Anticipatory bail in the favour of the accused which was cancelled by the High Court on an application sought by the victim. The present matter came up under an SLP before the Top Court, alleging that no conditions for Cancellation of Bail order were present in the facts and circumstances of the instant case and that the Sessions Court Order granting Anticipatory Bail was reversed without considering the settled legal precedents to that effect.

CJI Bobde: Will you Marry her?

Counsel: I will take instructions

CJI Bobde: You should have thought before seducing and raping the young girl. You knew you are a government servant.

We are not forcing you to marry. Let us know if you will. Otherwise you will say we are forcing you to marry her.

Upon rehearing after some time,

Counsel: I wanted to marry her. But she refused. Now I cannot, as I am already married. Trial is going on, charges are yet to be framed.

It is to be noted that the mother of the petitioner had agreed for a marriage between the victim and the accused, which was later revoked on her behalf. As a consequence FIR was lodged against the petitioner-accused for the offences under Sections 376, 417, 506 of the Indian Penal Code and under Sections 4 and 12 of the Protection of Children from Sexual Offences Act, 2012.

The letter written by Ms. Karat states, “By such questions put 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 the second matter, the petitioner seeking quashing of FIR against alleged charges of Rape, places on record that the parties were cohabiting as a spouse and had sexual relationships on the basis of consent. Staying the arrest for a period of 8 weeks, the Bench said, “…however brutal the husband is... when two people (are) living as husband and wife... can sexual intercourse between them be called rape?”

The letter sought for withdrawal of the said comment, states, “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.”

It was also added, “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.”