By Kabir Sharma:
Days after the Madras High Court’s horrendous judgment favouring mediation in a case of the rape of a minor, the Supreme Court held that it would be a “spectacular error” to adopt “any kind of liberal approach” in sexual assault cases Wednesday.
The family members of the Cuddalore rape survivor, whom the earlier verdict had targeted, have welcomed the order. “This will put a full stop to people advocating compromise and amicable settlement between survivors and rapists. It will protect survivors like my sister,” the survivor’s brother said.
The assault had happened two days before the girl’s Class X examinations.
“He added drugs to a cold drink and raped me…After I narrated this to my parents, he threatened them. My father was attacked. He pressurized me to go for an abortion. He kept denying his role until the DNA report came in. That led to his conviction,” the survivor said last week.
The Cuddalore Mahila Court in 2012 had sentenced the offender, V Mohan, to seven years imprisonment, besides slapping a 2 lakh penalty. The girl became pregnant after the rape and her child, now six years old, is in Class 2. The victim’s parents have passed away. Mohan has not served his sentence.
Jusice Devadass of the Madras High court in his abominable judgement, favouring the offender in all respects, overruled the mahila court’s decision, and called for face to face mediation between the rapist and victim saying, “The case is fit for attempting compromise between the parties…keeping the appellant inside the jail and asking him to participate in the mediation talk will not result in any fruitful result…The victim-girl is an unwed mother. Now there is a big question mark looming large before the girl as well as her child…. He (the offender) should be enabled to participate in the deliberations as a freeman and vent his feelings, open his mind and moorings. Where there is a will, there is a way.”
The decision was taken without seeking the opinion of the victim.
“Did the judge ever think how I suffered all these years? This single order of his wants me to go through that suffering again.” She said last week, adding she would never agree to a settlement.
“I will fight it out my entire life. I will show my daughter the way I struggled and fought to survive. Even if her father is a rapist, she will realise one day that her mother struggled for her. She will learn it the hard way. That will make her a good woman.”
She has been fighting all of society ever since.
“The entire village boycotted us when they learnt of the rape. Many of my relatives and friends stopped speaking to us. I was all alone. I go out to work as a porter…It was unfair on the part of the judge to give such a judgment without seeking my opinion. He forgot that I was the victim… After putting me into this ordeal for seven years, all of a sudden he (the rapist) agrees to marry me. All he wants is to step out of prison by agreeing to mediation,” she said.
The judge had even told the offender to make a fixed deposit of 1 lakh in her name.
“Only those who live here and see my plight understand the kind of problems I have undergone… There are several ways to make money. But you can’t buy dignity. Isn’t this order, without seeking my opinion, now asking me to place my self-respect at the mercy of the man who raped me? How can I have a life with him? I can only request the top judge (Chief Justice) to cancel this order.”
She says she will tell her daughter who she is, some day. “Whenever she asks me about her father, I tell her that she doesn’t have one. One day, when she reaches that age, I will tell her that her father was a rapist.”
The judgement had been severely criticized by legal experts. Atul Shrivastava, public prosecutor in multiple cases of rape, had said, “Mediation was established for solving compoundable offence disputes, including labour, motor accident claims: but not for criminal offence like rape and murder.”
The Supreme Court’s judgement, coming from a different case of similar nature, has been very timely and welcome indeed.
However, the shocking language used by Justice Dipak Misra invited criticism from many lawyers and activists.
Some excerpts read, “These are crimes against the body of a woman which is her own temple…Dignity of a woman is a part of her non-perishable and immortal self and no one should ever think of painting it in clay. There cannot be a compromise or settlement as it would be against her honour which matters the most. It is sacrosanct.”
And in another place, “Such an attitude reflects lack of sensibility towards the dignity, the elan vital, of a woman.”
Supreme Court Lawyer Vrinda Grover summed up the deep rooted problems this language reflects, on her Facebook Page:
“The woman’s right to bodily integrity stems from constitutional rights, human rights and not conservative notions of reputation, chastity, honour, dignity. Compromise in rape cases is prohibited by law. It is important for Supreme Court, and all other courts to premise their decisions on legal reasoning and not because they are kindly or charitably disposed towards women. Recent judgments of the courts make a compelling case for an urgent dialogue on the constitutional and human right to equality, rights of women and sexual violence, across the legal system.”
Indeed, it is of vital importance to question why the Supreme Court didn’t use the language of the law in conveying its (otherwise excellent) order. What was its reasoning based on?
Meanwhile, we can only hope more revolting judgements like that of the Madras High Court are not seen.