Calling a rapist 'family' is not just
The Supreme Court recently used its special powers under Article 142 of the Constitution to uphold the conviction of a 25-year-old man for raping a 14-year-old girl without imposing a sentence. Some hailed the decision as a 'landmark', but it has raised serious concerns about the message it sends on child protection and justice.
In 2018, a child was kidnapped in West Bengal. Later, she was found married to the man who had raped her and gave birth to his child. The court acknowledged that a crime had taken place and upheld his conviction under the Protection of Children from Sexual Offences Act, but reasoned that sending him to jail would make the victim the 'worst sufferer' because she had now built a life with the accused.
The bench of Justices A S Oka and Ujjal Bhuyan made the decision based on the report of a committee consisting of a clinical psychologist, a social scientist and a child welfare officer, which found that the woman, now 21, is emotionally attached to the accused and protective of her 'small family'. Has the court interpreted her trauma-based dependence as 'consent' and survival as 'choice'?
In another recent case, the Orissa High Court adopted a similar approach. Justice S K Panigrahi granted bail to a 26-year-old man accused of raping a girl he had allegedly been in a relationship with since 2019, when she was 16. The complainant said the accused had physical relations with her on the false promise of marriage and that she became pregnant twice, in 2020 and 2022, but was forced to terminate both pregnancies.
A case under the POCSO Act was filed in 2023. In 2024, the accused sought bail, claiming both families had agreed he should marry the complainant. The judge, while granting bail, remarked that the allegations, though serious in statutory terms, arose out of a 'consensual relationship' between two individuals who were close in age and shared a personal bond before the case was filed and did not prima facie exhibit characteristics of force, coercion or exploitation.
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