Eminent figures of society, law enforcement agencies, and recently, even the Hon’ble Chief Justice of India in Mohit Subhash Chavan vs. The State of Maharashtra & Anr. have been known to endorse the marriage of rape convict with the prosecutrix. Women’s rights activists and support groups have passionately debated and; raised serious concerns over the issue. It raises concerns especially over its use as a tool of acquittal for releasing an unpunished offender back into society.
Conflict over the presumption of innocence:
The Indian judiciary holds the view that punitive actions must be focused on reformation as against retribution. The view is also held in conjunction with the maxim “Prestat reum nocentem absolvi, quam ex prohibitis Indiciis illegitima probatione condemnari”. This roughly translates to the effect that; it is better to absolve a guilty person than to condemn him without sufficient reason. Over the centuries, this philosophy has evolved into various rulings that witnessed the Lords of various legal systems advocating the presumption of innocence and going as far as validating the acquittal of a hundred convicts to save an innocent from punishment.
That being said, the Indian law albeit following an adversarial system and; relying on the presumption of innocence for every other offence, makes some stark distinctions about the offence of rape as a man accused of rape does not get the benefit of the presumption of innocence otherwise available to a person accused of another offence and thus, must establish his innocence to save himself from conviction.
Nature of offence:
The Supreme Court, in various judgments, has emphasized the fact that rape is a non-compoundable offence and; that a compromise between the prosecutrix and the rape convict cannot be a measure for reducing the term of the punishment. Through these judgments, it has also conveyed concern over the erroneous methods of trial courts at quashing criminal complaints based on compromises being reached between the convict(s) and prosecutrix.
In Shimbhu & Anr. vs State Of Haryana, a bench of Chief Justice of India P. Sathasivam and Justices Ranjana Desai and Ranjan Gogoi had held; “Rape is a non-compoundable offence and it is an offence against the society and; is not a matter to be left for the parties to compromise and settle.” It is thus, a well-settled principle that a marriage between a rape convict and the prosecutrix is neither tenable in law nor a means to reduce the sentence of imprisonment.
In recent years, there has been a growing trend of cases of rape filed by jilted women who complain that; the consent for sexual intercourse was obtained from them under the pretext and promise of marriage. In Maheshwar Tigga vs the State of Jharkhand, a bench of Justices Navin Sinha, Rohinton Nariman, and Indira Banerjee held; “Under Section 90 IPC, a consent given under a misconception of fact is no consent in the eyes of law. But the misconception of fact has to be in proximity of time to the occurrence. It cannot be spread over a period of four years.”
The peculiarity lies in the notion that; the prosecutrix approaches the court in hopes of getting the accused to honour his promise of marriage to her and; the solemnization of marriage in such situations would essentially restore the consent of the prosecutrix. The fickleness surrounding consent in such situations is as dangerous. Because it is ridiculous due to the logical fallacies as detailed hereunder.
The first reason is that when differences can arise between married couples leading to divorce; it is unreasonable to expect that couples would not have a fallout in a live-in or romantic relationship. The trend of acknowledging pre-marital sex as rape in the event of differences in a relationship destroys not just the lives of the individuals affected by such complaints but also the notion of justice vis-à-vis denying the presumption of innocence of the accused.
The second reason is that women themselves rescind their promise to marry quite frequently, owing to a variety of personal or societal reasons. In several instances, such actions are quite devastating to the mental health of the man so affected. If revocation of such promise amounts to obtaining consent by misconception of fact; then it’d stand to reason that such women must be held guilty for rape and imprisoned as such.
The third reason is that; where the promise to marry was revoked at the behest of reasons attributable to family be it that of the man or the woman it’d again follow from the line of reasoning that the entire family has abetted the act of rape and must be punished for it.
The fourth reason is that; consent for sexual intercourse that hinges on the promise to marry is tantamount to the nullification of the offence of rape upon solemnization of marriage between the accused and the prosecutrix which is by no means a legitimate arrangement for a non-compoundable offence.
It has been the stance of the law that; solemnization of marriage would not nullify the commission of a non-compoundable offence such as rape. However, it is truly tragic that; such arrangements have been reached at the behest of both the society as well as the legal system of our country. The situation seems to have been further complicated by incriminating the revocation of a man’s promise to marry and; acknowledging it as rape. While marriage between a rape convict and prosecutrix would fundamentally be to the detriment of the victim. The Indian judiciary must ponder upon why it must deprive a man of his liberty through the presumption of a heinous offence based purely on differences that may naturally arise in the course of any romantic relationship.
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