SC ASKED THE ACCUSED TO MARRY THE RAPE VICTIM: CRITICAL ANALYSIS OF MOHIT SUBHASH CHAVAN CASE

Author - Manorma Singh*

Interim protection to an accused rapist in case of Mohit Subhash Chavan v. the State of Maharashtra

On the 1st of March, 2021, a three-judge bench of the apex court comprising of Chief Justice of India (hereinafter alluded as CJI) S.A. Bobde, Justice A S Bopanna, and Justice V Ramasubramanium in the case of Mohit Subhash Chavan v. the State of Maharashtra[1] granted interim protection from arrest for four weeks to the accused. The apex court was hearing the case against an accused rapist named Mohit Subhash Chavan, a 23 years old government servant. He was charged with raping a minor girl back in the year 2014-15. Anticipatory bail was granted to the accused by the lower court, which the High Court of Bombay canceled on the 5th of February on an application filed by the girl[2].

While hearing the petition, the bench asked the accused, "Will you marry her?" The advocate of the accused, Anand Dilip Langde, replied to the court that he would ask his client regarding it and inform the court accordingly. Further, CJI replied, "You should have thought before seducing and raping the young girl. You knew you are a government servant."[3] The bench added that "We are not forcing you to marry" "Let us know if you will. Otherwise, you will say we are forcing you to marry her."[4] When the hearing resumed, the accused's advocate replied that his client is already married, so he can't marry. Also, he stated that when the complainant was a minor back in 2016, the accused offered to marry her, but she denied it. Following this, the Supreme court bench asked him to seek regular bail. The counsel said that the accused is a government servant, so if he gets into the lockup for 48 hours or more, he will get suspended; therefore, he is requesting protection from arrest[5].

Facts of the Case[6]

The victim lodged an FIR against the accused in 2019. The FIR was lodged under "Sections 4 and 12 of the Protection of Children from Sexual Offences Act, 2012" ("POCSO Act") and under "Sections 376, 417, 506 of the Indian Penal Code,1860." The girl alleged that when she is in 9th standard and her age was 16 years during 2014-2015, the accused, a distant relative of hers, used to stalk her. Further, she alleged that he committed rape by entering from the backside door and threatened her not to disclose the incident. It was alleged by the girl that repeatedly, he used to visit her house and did sexual intercourse with her. Also, sometimes he used contraceptives, and as she was afraid, she never told anyone about the incident.

She stated that she tried to complain, but the accused's mother persuaded her that "she will accept her as the daughter-in-law." She also said that the petitioner once made her illiterate mother sign a stamp paper piece alleging that the two had an affair and that they had both engaged in sex with her consent. When she attained the majority, it was promised that the accused would marry her, but he married someone else and backtracked her.

The Sessions Court granted anticipatory bail to the accused, after which the girl approached the High Court of Bombay for cancellation of bail. The Bombay High Court canceled the anticipatory bail and observed that "the accused had sexually exploited the girl for a sufficiently long period" and said that "the Sessions Court's order granting bail was "atrocious."" The accused rapist then filed a petition in the supreme court seeking anticipatory bail.

Opinions of various women activists, journalists, and eminent personalities: Brinda Karat, CPM politburo member, said "should not give an impression of supporting such retrograde approaches" and urged CJI bobde to withdraw his remarks[7].

Aparna Jain took to her Twitter and criticized the CJI's remarks by writing, "STOP MAKING RAPISTS MARRY THEIR SURVIVORS! CHARGE THEM APPROPRIATELY." Similarly, Alok Deshpande wrote, "If this comes from CJI, we, as a nation are in deep deep deep trouble...[8]"

Aparna Bhatt, a Supreme court lawyer, said "I am not aware of the full facts, but it is shocking that in a case of rape, the Supreme Court considers marriage as a solution.[9]"

Actress Tapsee Pannu expressed her views on Twitter by saying, "Did someone ask the girl this question? If she wants to marry her rapist !!!??? Is that a question !!!??? This is the solution or a punishment? Plain simple DISGUST,[10]"

Clarification by the Chief justice on his remarks

CJI clarified that the question asked to the accused whether he would marry the victim or not was based on judicial records. It contained an undertaking by the man where it was mentioned that once the minor girl attains the age of majority, he would marry her. In this regard, the Supreme Court was backed by the Bar Council of India and asked activists who had written to the CJI to withdraw his remarks not to "scandalize" the highest judiciary and take "political mileage" of its proceedings[11].

Conclusion

India is the country that has the largest written constitution, and fundamental rights are guaranteed in it to the people. The Supreme court is the guardian of the constitution. The question coming from the judges of the apex court to the accused rapist that is "will you marry her" that is to the victim is shocking and is least expected. It is disheartening to know that the Chief Justice of India was a part of giving such a statement. Rape is a severe offence should be treated like one. According to NCRB report in India, a woman is raped every 16 minutes, which is shameful[12]. If marrying the victim with the rapist is the solution, then we as a country are in colossal trouble providing justice and protecting people's fundamental rights.

Attorney General once stated to the apex court that "judges need to get educated about gender sensitization," which I truly believe is necessary as similar incidents happen. When the Madhya Pradesh High court in the case of Vikram v. State of Madhya Pradesh[13] asked the person accused of "outraging the modesty" to request the victim to tie rakhi on his wrist and promise her to protect her always. These orders reflect that notwithstanding several amendments, male-centric society and sexism, with backward thoughts of 'honor' still exist and obstruct women's path towards justice.

REFERENCE

1.SLP(Crl) No. 1573/2021 II-A

2. Apoorva Mandhani, “Will you marry her? — CJI Bobde asks govt servant accused of repeatedly raping minor”,The print, Publication Date: 03/01/21, https://theprint.in/judiciary/will-you-marry-her-cji-bobde-asks-govt-servant-accused-of-repeatedly-raping-minor/613775/ , Last visited: 03/16/21.

3. Anjali Jain, “SC Bench asking rapist if he would marry the victim raises storm”, The Leaflet, Publication Date:03/03/21, https://www.theleaflet.in/sc-bench-asking-rapist-if-he-would-marry-the-victim-raises-storm/# ,Last

visited: 03/16/21.

4. Express News Service, “Man accused of raping relative when she was minor, CJI-led bench asks: will you marry her?”, The Indian Express, Publication Date: 03/02/21, https://indianexpress.com/article/india/man- accused-of-raping-relative-when-she-was-minor-cji-led-bench-asks-will-you-marry-her-7210283/ , Last visited: 03/16/21.

5. Abraham Thomas, “Are you willing to marry her? Supreme Court to rape accused”, Hindustan Times Publication Date: 03/02/21, https://www.hindustantimes.com/india-news/are-you-willing-to-marry-her-supreme-court-to-rape-accused-101614646926673.html , Last visited: 03/16/21.

6. Live law news network, “Will You Marry Her? Supreme Court Asks Man Accused Of Raping Minor; Grants Him Protection From Arrest”, Live law, Publication Date: 03/01/21, https://www.livelaw.in/top-stories/will-you-marry-her-supreme-court-asks-man-accused-of-raping-minor-170530?infinitescroll=1 , Last visited: 03/16/21.

7. “SC query to rape accused on marrying girl was based on judicial records”, Times of India, Publication Date:03/03/21, https://timesofindia.indiatimes.com/india/scs-query-to-rape-accused-on-marrying-girl-was-based-on-judicial-records/articleshow/81314654.cms , Last visited: 03/17/21.

8. FP Staff, “Will you marry her? : CJI SA Bobde asks man accused of raping minor; journalists, activists criticise SC remarks”, First spot, Publication Date: 03/01/21, https://www.firstpost.com/india/will-you-marry-her-cji-asks-man-accused-of-raping-minor-journalists-activists-criticise-remarks-9360781.html , Last visited: 03/17/21.

9. Abraham Thomas, “Are you willing to marry her? Supreme Court to rape accused”, Hindustan Times,Publication Date: 03/02/21, https://www.hindustantimes.com/india-news/are-you-willing-to-marry-her-supreme-court-to-rape-accused-101614646926673.html , Last visited: 03/16/21.

10. HT entertainment desk, “Taapsee Pannu, Sona Mohapatra shocked as SC asks rape accused if he will marry the survivor: Plain simple disgust”, Hindustan Times, Publication Date: 03/02/21,

https://www.hindustantimes.com/entertainment/bollywood/taapsee-pannu-sona-mohapatra-shocked-as-sc-asks-rape-accused-if-he-will-marry-the-survivor-plain-simple-disgust-101614659534602.html , Last visited:03/17/21.

11. Aneesha Mathur, “Never asked anyone to marry rapist: CJI Bobde clarifies after controversy”, India today,Publication Date: 03/08/21, https://www.indiatoday.in/india/story/supreme-court-bobde-chief-justice-clarifies-controversy-never-asked-anyone-to-marry-rapist-1776894-2021-03-08 , Last visited: 03/17/21.

12. Priyanka Payal, “Rape country: No woman is safe in India”, India legal, Publication Date: 10/06/20,https://www.indialegallive.com/top-news-of-the-day/news/rape-country-no-woman-is-safe-in-india/ , Lastvisited: 03/16/21.

13. CRIMINAL APPEAL NO. 208 OF 2019

*The Author is a 4th year B.A.LLB (Hons) student at Amity Law School, U.P. (Lucknow Campus)

Disclaimer: The opinions and views in this article are personal and independent opinions of the author. VAIDHA doesn't hold any liability arising out of this article