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Insights into Editorial: Rape and marriage: On the Supreme Court’s failure to protect the rights of women




The Supreme Court’s latest query to a Maharashtra government employee asking whether he would marry a girl he was accused of raping repeatedly while she was a minor is insensitive to the core.

By offering marriage as a solution to a rape victim, the judiciary failed to protect the rights of a girl.

In his petition, the accused recounted the allegations that he sexually abused the girl since she was in high school, and also that he had threatened the minor.

Instead of meting out harsh punishment, the Court asked the lawyer representing the accused to find out whether his client would be willing to marry the victim or risk going to jail.


Unequal Justice for Unequal people:

In another case, the Bench stayed the arrest of a man accused of rape after falsely promising marriage.

The victim said she was promised marriage and was “brutally and sexually abused”.

The CJI asked the girl’s lawyer: “When two people are living as husband and wife, however brutal the husband is, can you call sexual intercourse between them ‘rape’?”

In both cases, these crimes attract severe penalties under the Criminal Law (Amendment) Act, 2013.


Previous judgement by Supreme court itself on against marrying rape victim:

In Shimbhu & Anr vs State of Haryana (2013), the Supreme Court said the offer of a rapist to marry the victim cannot be used to reduce the sentence prescribed by law.

When the scars of the Nirbhaya case are still raw, and a series of rape and murders are being reported against minors, especially Dalits, in Uttar Pradesh, the judiciary’s shocking remarks echo a deep-set prejudice against gender equality.


Violation to the Constitution of India Article 21:

  1. According to creative interpretation by the Supreme Court, rights enshrined in Article 21 include the rights to health, privacy, dignity, safe living conditions, and safe environment, among others
  2. In the State of Karnataka v. Krishnappa, the Supreme Court held that sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female.
  3. In the same judgment, it held that non-consensual sexual intercourse amounts to physical and sexual violence.
  4. In the Suchita Srivastava v. Chandigarh Administration, the Supreme Court equated the right to make choices related to sexual activity with rights to personal liberty, privacy, dignity, and bodily integrity under Article 21 of the Constitution.


Other areas to focus to avoid women Harassment:

On marital rape, though the recommendation was not included in the Act, the Justice J.S. Verma Committee was clear the law ought to specify that a marital or another relationship between the perpetrator and victim cannot be a defence against sexual violation.

Citing the judgment of the European Commission of Human Rights in C.R. vs U.K., it endorsed the conclusion that “a rapist remains a rapist regardless of his relationship with the victim”.


JS Verma Committee recommendations on Sexual Harassment at the Workplace Act:

  1. Justice J.S. Verma Committee had recommended setting up of an employment tribunal instead of an internal complaints committee (ICC) in the Sexual Harassment at the Workplace Act.
  2. To ensure speedy disposal of complaints, the committee proposed that the tribunal should not function as a civil court but may choose its own procedure to deal with each complaint.
  3. An internal complaints committee as laid down under the act could be counterproductive as dealing with such complaints in-house could discourage women from filing complaints.
  4. Domestic workers should be included within the purview of the Act.
  5. The Committee has termed the Sexual Harassment Act “unsatisfactory” and said it did not reflect the spirit of the Vishakha guidelines — framed by the Supreme Court in 1997 to curb sexual harassment at the workplace.
  6. The Committee said any “unwelcome behaviour” should be seen from the subjective perception of the complainant, thus broadening the scope of the definition of sexual harassment.

On Domestic violence, In India, it is an entrenched problem, and it has only been exacerbated in recent years. According to the National Crime Records Bureau’s (NCRB) ‘Crime in India’ 2019 report, about 70% of women in India are victims of domestic violence.

One such manifestation of this domestic violence is Marital rape.

Marital rape, the act of forcing your spouse into having sex without proper consent, is an unjust yet not uncommon way to degrade and disempower women.



A relationship between two individuals, including marriage, is built around love, respect, trust and consent.

Within that civilised framework, a violent and exploitative act like rape has no place.

This arduous battle for equality becomes even more difficult when people in high offices make offensive remarks.

Equal rights activists have always worked hard against misogyny, patriarchal mindsets and other failings such as blaming the victim for rape.

The law should deliver justice, not blatantly tilt the scales against women’s rights.