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Tamil Nadu rape judgement raises legal hackles. Find out why

Imran Qureshi | Updated on: 13 February 2017, 3:15 IST

The judgement

  • Madras HC has passed a judgement ordering a rapist and a minor victim to undergo mediation.
  • This is normally used for settling marital and civil disputes, not criminal offences.
  • Justice Devadass cites tenets of Islam, Hinduism and Christianity to insist on solving the \'dispute\' amicably.
  • Judge doesn\'t want victim and her child to suffer social stigma.

The backlash

  • Top legal minds have criticised the judgement, and are worried that it will set the wrong precedent.
  • Activists wonder how the reconciliation plea of a convicted rapist can be entertained.

A judgement of the Madras High Court, ordering mediation between a rape victim and the rapist, has raised the hackles of activists and members of the legal fraternity.

Justice S Devadass has found the Alternate Dispute Resolution (ADR) system - normally used for settling marital disputes and other civil disputes - to be the right platform to solve the problem of the minor victim of rape and the child born out of it.

Fundamentally, the story is that a minor orphan was raped by a man in 2009. A DNA test has confirmed that the child whom the minor gave birth to was that of the accused. A Mahila Court in Cuddalore, Tamil Nadu, convicted the accused, sentenced him to seven years of imprisonment and fined him Rs 2 lakh in 2012.

Now, the high court has granted the accused interim bail so that he can attend the mediation proceedings. He has also been asked to deposit Rs 1 lakh in a bank. The bank, in turn, has been directed to ensure that the interest is paid to the victim.

Citing religion

Justice Devadass' judgement notes: "It is a march of law. There is no bar to attempt a reconciliation even in a criminal appeal where the accused has been convicted under Section 376 of IPC."

The judgement cites Islam, Hinduism and Christianity to state: "There are instances of solving disputes in a non-belligerent manner.''

It also says: "The victim girl has become mother of a child. But, as on date, she is nobody's wife. So she is an unwed mother. Now there is a big question mark looming large before the girl as well as her child, who is completely innocent. Generally, in this type of cases, the girl concerned is stated to be a victim, but really speaking the child born out of such a physical contact is also a victim. The child is a victim of circumstances. She was born to suffer a social stigma for no fault of her. It is a great tragedy."

Defying logic

Devadass' verdict has left members of the legal fraternity like retired Supreme Court Justice Santosh Hegde aghast.

"It is wrong. This is an offence under the Indian Penal Code. No court has the power to condone the sentence because the offence is non-compoundable. I don't know how a judge can pass such an order in a heinous crime. This is not a case for settlement," Justice Hegde told Catch.

Chennai-based advocate Geeta Ramaseshan said: "It beats logic. The court is blinded by the notion of an unwed mother. Any accused will say he will marry the victim after rape and, subsequently, leave her and go away with another woman. It is a very conservative way of looking at sexual violence."

Justice Devadass' judgement cites tenets of Islam, Hinduism and Christianity, but has left legal eagles and activists aghast

Activists have raised questions as to how the plea of the rapist for a compromise could be even considered and wondered about the implications of this verdict when used as a precedent.

"This judgement will be used to force the woman to compromise. If she asks for a compromise, it is a different matter, but the judge saying it or ordering it is a totally different issue. It is very moralistic," said Donna Fernandes of the Bengaluru-based women's rights group, Vimochana.

Chennai-based senior advocate Sudha Ramalingam, said: "What the judgement is trying to say is that deterrent cannot be the sole ground for punishment. Perhaps, it is looking at an amicable settlement for the victim and the child. But, mediation ought not to be remedy in a criminal case when the crime is a cognisable offence.

"Even as per the old law - before the amendments to the criminal law after the Nirbhaya rape), consent by anyone below 15 years of age was not acceptable."

This furore is symptomatic of the way rape is looked at in India. In the eyes of the judge, it is better for the woman to be married - even to her rapist - than be left to fend for herself. Instead of ruling that she be given all the State support she needs to become independent and stand on her own feet, the Madras High Court verdict has reinforced the entrenched patriarchy that requires a woman to be sheltered by a man.

The views expressed here are personal and do not necessarily reflect those of the organisation.

First published: 25 June 2015, 6:30 IST