A Bench of the Supreme Court of India on Monday granted protection from arrest to an alleged rapist. While doing so, Chief Justice of India SA Bobde asked the accused about his willingness to marry the victim.

These remarks have now caused a furore on social media. What motivated the CJI to make such remarks? Let us understand the facts of the case.

Facts of the case

The victim had accused the man of raping her since she was 14-15 years of age. The police charged him with offences under the Indian Penal Code, 1860 and the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The minor victim and her family did not file a report with the police initially. The accused's mother had dissuaded them by assuring in writing that her son would marry the victim once she turns 18. The marriage did not happen. Finally, the victim filed an FIR.

Judicial journey of the case

An Additional Sessions Judge (ASJ) hearing the accused’s application for bail noted that the girl was a minor at the time of the crime, and that her consent was not material under law. The ASJ still held that she had ‘sufficient maturity’, and that there was no explanation for the belated filing of the FIR. Despite the written assurance signed by the accused and his mother, the ASJ observed that the victim may have falsely implicated the accused as he was a public servant.

A Single Bench of the Bombay High Court observed that the ASJ’s reasoning showed "utter lack of sensitivity in such serious matters", and "undermined the legal principles and parameters which should weigh with the Court in entertaining the application for anticipatory bail". The High Court also held that the very fact that the accused executed the writing was enough to infer that he had indulged in sex with the victim when she was a minor. As a result, the High Court quashed the anticipatory bail granted by the ASJ to the accused.

But none of the two judges had the perspective of the matter which CJI Bobde did. Hearing an appeal from the High Court’s order, the CJI questioned the accused if he was ready to marry the victim.

It appears that the Supreme Court, like the ASJ, was concerned about punishing the man for what may have been a consensual relationship. The judges perhaps could not reconcile themselves with the fact that the legislature in its wisdom has raised the age for sexual consent from 16 years to 18 years.

The CJI's remarks

The CJI’s remarks elicit surprise at many levels. At first, the Supreme Court of India has repeatedly held that rape is a non-compoundable offence. It is settled law that rape is not an offence in personam but an offence against the society and State. A compromise based on marriage between the victim and accused can’t make the offence go away.

The remarks are also surprising as only in November last year, in a somewhat similar matter, Attorney General KK Venugopal had told the Supreme Court that judges need to be gender-sensitized. The AG’s suggestion does not seem to have found favour with the Court. Treating marriage as a solution to any case of rape is anything but gender sensitivity.

Further, the order of the Supreme Court raises a question mark over judicial accountability of judges in the apex court. Earlier this year, the CJI himself wrote to the government withdrawing the Supreme Court Collegium’s recommendation to promote Justice Pushpa V Ganediwala as a permanent judge of the Bombay High Court. This was in reaction to Justice Ganediwala passing a few controversial verdicts acquitting persons accused under the POCSO Act.

Justice Ganediwala may have failed the victims in those cases by adopting a very literal interpretation of the law and not taking the object of the POCSO Act into consideration. But the CJI’s present remarks fare worse in my opinion, as they are outside the scope of any law on the subject. Yet, there will be no such repercussion for the CJI or other judges of the Supreme Court, I guess.

The CJI’s remarks are also ironical in the context of the same Bench recently refusing to stay provisions of anti-conversion laws. These provisions prohibit religious conversion for the purpose of marriage. Read in this background, the CJI’s remarks betray the hypocrisy of our society. A society that is okay with marrying women off to the men they accused of raping them. But one that is not so okay if women want to marry men of other religions.

Remarks in marital rape case - unjustified attention

The irony associated with the CJI’s remarks doesn’t end here. Because of the controversial nature of these remarks, his comment in another rape case too got a lot of negative attention in the media. Undeservedly so, in my view.

The other case was also heard by the same Bench on the same day. In that case, the woman alleged that she had been living with the man as his wife as he had promised to marry her. He later backtracked on the promise. The woman had also alleged that man used to brutally beat her. During the hearing of this case, the CJI questioned if sex between a couple living as husband and wife can be termed as rape, "however brutal the husband is".

In my view, his reference to brutality was taken out of the context of ‘brutal beatings’. And it was misapplied in the context of ‘marital rape’. But the case did not involve the issue of marital rape at all. The issue was of consensual sex in a live-in relationship based on a false promise to marry. These cases fall under a grey area that the courts need to deal with.

As such, the CJI needed to ask the question he did. But unfortunately, his comment got painted in the same light as his remark about marrying the rape-victim.

The author is the Founding Partner at Primus Legal.

Disclaimer: The views and opinions expressed in this article are those of the author's and do not necessarily reflect the views of Bar & Bench.