When Rape Charges are Dropped: A Victim’s Dilemma and a Rapist’s Escape

By Jennifer Maria Dsilva

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Background

According to the National Crime Records Bureau of India, the crime rate against women is 55.2%.[1] As seen in many judgments, including Mukesh and Another v. State (NTC) of Delhi & Ors.,[2] the rapist was given the death penalty seeing the brutality of the crime. Despite various laws and mechanisms to punish a rapist, it has been observed in various instances that people choose to compromise instead of going forward with the litigation. It has been observed that the victims tend to marry their rapist and consequently, drop charges against them. Yet, we see that in some cases courts have refused to drop the charges. It must be understood that rape was made a crime for a reason and punishment for the same is important to ensure justice to victims. Before looking into the importance of punishing this crime, the reasons for rape compromise must be examined.

Rape Compromise & India

Even in the 21st century, we observe that there is a taboo attached to such issues in the society. Many a times, when the victims come forward, they themselves are blamed for the crime. A rudimentary mindset prevails in certain areas that once a girl is raped, she has lost her izzat (honour). This is considered a violation of her integrity, and the act of rape compromise is thus influenced by many factors including society, custom and so on.[3] In rural areas, this would mean that no one would marry her because she is no longer a virgin. Such a situation would compel those women to take the easier route, rather than prosecuting the criminals. The victims are also hesitant in being questioned in front of a courtroom. This becomes another factor leading to compromise and in various instances, the case not being filed in the first place. In such circumstances, even when women agree to drop charges and marry their rapist, the courts would not allow dropping of charges. Crimes are prosecuted with the intention of ensuring social order and justice in the society. Courts consider this while quashing charges of rape on the grounds of compromise.

In the case of Gian Singh v. State of Punjab[4] the court observed that quashing cases regarding crimes of grave nature, like rape and murder, should not be done because it will have a harmful effect on society.  Further, in the case of Yogendra Yadav & Ors. v. State of Jharkhand,[5] it was held that compromise would not be a ground for quashing cases of rape in exercise of power under Section 482 of Code of Criminal Procedure.

Rape is punishable under Section 375 of the Indian Penal Code, yet there are some instances of rape which do not fall under its ambit. Additionally, marital rape cannot be prosecuted under this provision, as stated in the case of Sree Kumar v. Pearly Karun,[6] that the provision of rape can only be brought in cases where the wife is living independently from her husband under separation or by custom as recognised by law. The limitations of this statue result in many women being raped in their marital home frequently.

According to the National Family Health Survey (NFHS) as of the year 2015-16, 5 out of 100 women have reported their husbands for forcing them to have sexual intercourse.[7] Remedies are not easily within the reach for women suffering from such problems. In these circumstances, it is difficult to ensure the safety of women in their marital home. Rape compromise is a difficult situation where a woman is compelled to take such recourse either by their family, society or even the family of the rapist. It was observed in the case of Shimbhu vs State of Haryana[8] that the court cannot assume the consent of the victim to compromise in rape cases to be genuine, because she can be pressured for the same. This is why they refrain from allowing a compromise.

Conclusion

Rape is an extremely severe crime. Release of rapists on the grounds of their marriage to their victims should be unthinkable. Even though such instances still happen, it is fortunate that courts do not look at this crime casually. As stated above, the Supreme Court has set precedents over such cases, ensuring that the rapist is prosecuted regardless of any compromise. This will ensure justice, even for the victim and would allow such cases to continue. In India, where sexual violence against women is predominant, it is important for our legal system to ensure that these criminals are punished. The various circumstances in which the victim is made to compromise do not change the severity of the crime. Also, marrying the rapist hardly ensures safety of those women. Since marital rape is not criminalized in India, it is important to convict the rapist, rather than marrying him. The issue is that rape is not recognised within marriage, hence marriage cannot be a solution to rape. Time and again, courts have regarded the problem of rape compromise and decided against the victim’s decision not to punish the accused. This shows the recognition of this problem and the fact that courts, once such cases are registered, would in fact enforce justice. Thus, such decisions of rape compromise must not be taken when a remedy for such injustice is provided under law.

[The author is a fourth year B.A. L.L.B. (Hons.) student at School of Law, Christ University]

[1] Crime in India Statistics by National Crime Records Bureau, India, 2016. http://ncrb.gov.in/StatPublications/CII/CII2016/pdfs/NEWPDFs/Crime%20in%20India%20-%202016%20Complete%20PDF%20291117.pdf.

[2] Mukesh and Another v. State (NTC) of Delhi & Ors., 212 (2014) DLT 99.

[3] Tackling Violence Against Women: A Study of State Intervention Measures (A comparative study of impact of new laws, crime rate and reporting rate, Change in awareness level),  Funded by: Ministry of Women and Child Development, Government of India, New Delhi, March, 2017.  http://www.wcd.nic.in/sites/default/files/Final%20Draft%20report%20BSS_0.pdf.

[4] Gian Singh vs. State of Punjab, (2012) 10 SCC 303.

[5] Yogendra Yadav and others v. State of Jharkhand, (2014) 9 SCC 653.

[6] Sree Kumar vs. Pearly Karun 1999 (2) ALT Cri 77.

[7] Data On Sexual Violence In Marriages Shows Why India Should Progress Towards Criminalising Marital Rape by Kumar Rajesh, Centre for Informal Sector and Labour Studies, JNU, New Delhi. https://www.huffingtonpost.in/kumar-rajesh/latest-data-on-sexual-violence-in-marriages-shows-why-india-should-progress-towards-criminalising-marital-rape_a_23367102/.

[8] Shimbhu vs State of Haryana 2013 (10) SCALE 595.

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