NEW DELHI -- A week after the Madras High Court gave bail to a man convicted of raping a teenager in 2002, and ruled that he should have a "mediation" session with the survivor, who gave birth to a child after the sexual assault, the Supreme Court has ruled that rape cases should not be directed towards "compromise or settlement".
The apex court made the observation in a judgment on an appeal in a rape case from Madhya Pradesh where a man was convicted of raping a 7-year-old.
"We would like to clearly state that in a case of rape or attempt of rape, the conception of compromise under no circumstances can really be thought of," the ruling by Justice Dipak Misra and Justice Prafulla C. Pant says.
The judges referred to a passage from a judgment by a three-member bench in Shimbu and Another Vs State of Haryana:
"Further, a compromise entered into between the parties cannot be construed as a leading factor based on which lesser punishment can be awarded. Rape is a non-compoundable offence and it is an offence against the society and is not a matter to be left for the parties to compromise and settle. Since the Court cannot always be assured that the consent given by the victim in compromising the case is a genuine consent, there is every chance that she might have been pressurised by the convicts or the trauma undergone by her all the years might have compelled her to opt for a compromise. In fact, accepting this proposition will put an additional burden on the victim. The accused may use all his influence to pressurise her for a compromise. So, in the interest of justice and to avoid unnecessary pressure/harassment to the victim, it would not be safe in considering the compromise arrived at between the parties in rape cases to be a ground for the Court to exercise the discretionary power under the proviso of Section 376(2) IPC.”
In the Madras High Court judgment, which has outraged human rights activists in India, Justice D. Devdass said that mediation was the best option for the survivor who is "nobody's wife... an unwed mother.”
“In the facts and circumstances, the case before us is a fit case for attempting compromise between the parties. ‘Mediation’ mode is best suited to them…Keeping the appellant inside the jail and asking him to participate in the mediation talk will not result in any fruitful result,” the judgment said.
"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,” the judge said.
The survivor, who was 15-years-old when she was assaulted, has told the media that she is not interested in reaching any kind of compromise with the man.
In the context of the Madhya Pradesh case, the Supreme Court said to "enter wedlock" or taking a "soft approach" is a "spectacular error."
"Sometimes solace is given that the perpetrator of the crime has acceded to enter into wedlock with her which is nothing but putting pressure in an adroit manner; and we say with emphasis that the Courts are to remain absolutely away from this subterfuge to adopt a soft approach to the case, for any kind of liberal approach has to be put in the compartment of spectacular error. Or to put it differently, it would be in the realm of a sanctuary of error," the SC judgment says.