"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well." -Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Wednesday, August 28, 2013

Marrying the victim is not a cover for lesser punishment for rape


Marrying a rape victim by the assailant seems to be a phenomenon in India to ensure mitigated punishment where the accused work-around the traditional values of Judges. How could a judge send a husband to jail for having sexual intercourse with his wife, though premarital, and leave the wife desolate. 

The SC came out with a clear no to such policy in sentencing as not supported by law and counseled the lower court not to be soft on sentencing in rape cases. CJI speaking for the court said that the discretion to award appropriate sentence is given with the judiciary and the same has only general standards to follow not any clearcut formulas. (See para 9)

In the offence gang rape, minimum punishment is 10 years and the court may award lesser punishment by giving 'special and adequate reasons.' In para 2, the court explains that "the law on the issue can be summarized to the effect that punishment should always be proportionate/commensurate to the gravity of offence. Religion, race, caste, economic or social status of the accused or victim or the long pendency of the criminal trial or offer of the rapist to marry the victim or the victim is married and settled in life cannot be construed as special factors for reducing the sentence prescribed by the statute."A compromise entered between parties also cannot be a ground for reduced punishment as rape is a non-compoundable offence and is no a matter left for the parties to settle among themselves.

Now let us see how many offers are extended to rape victims of marriage by the assailants and how many judges can keep their prejudices and biases at bay. 

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