New Delhi: Chief Justice of India S.A. Bobde Monday asked a 23-year-old government servant whether he would marry the woman who has accused him of rape.
The court was hearing a case against Mohit Subhash Chavan, a technician in the Maharashtra State Electric Production Company Ltd, who was accused of raping a minor girl in 2014-15. He was allegedly 17-18 years old then, and the girl was his distant relative and a student of Class 9 at the time.
On 5 February, the Bombay High Court had cancelled the anticipatory bail granted to Chavan by a lower court, on an application filed by the girl. He had then challenged this order in the Supreme Court, demanding anticipatory bail.
During the hearing, CJI Bobde asked Chavan’s lawyer, “Will you marry her?”
In response, the lawyer told the court that he will ask his client and inform the court.
“You should have thought before seducing and raping the young girl. You knew you are a government servant… We are not forcing you to marry. Let us know if you will, otherwise you will say we are forcing you to marry her,” the CJI said.
Chavan’s lawyer then told the court that he initially wanted to marry her but the girl refused.
“Now I cannot as I am already married,” he told the court.
The bench, also comprising Justices A.S. Bopanna and V. Ramasubramanian, then granted him interim protection from arrest for four weeks, allowing him time to file for regular bail.
According to Senior Advocate Meenakshi Arora, if the case was at the stage of bail, then the judge should not have made such observations about marriage.
“I don’t think they were warranted…I don’t think it should’ve been suggested to the victim,” Arora told ThePrint.
She noted, “The offence is rape and will still not go away. That’s an offence in rem, it is against the State and the public. Marrying the victim of rape does not take away from the offence.”
However, considering the age of the accused and the minor girl, Arora also asserted that this area of law is “very vexed”.
“The legislature really needs to revisit this area of consenting intercourse with a minor, who is at the borderline…The law should look at consensual acts between young people and particularly where the girl may not be 18 but capable enough to make a decision,” she said. “The law does not leave any room with the judge, that’s the problem.”
The incident allegedly dates back to 2014-15, when the complainant was in Class 9. She claimed that Chavan, who was her distant relative, raped her multiple times until she was in Class 12.
According to a police complaint filed by the girl in 2019, she had allegedly attempted suicide in June 2018, after which her mother took her to the police station to file a complaint against Chavan. However, parents of both parties executed an undertaking, instead, agreeing to get them married once the girl turned 18 and accepting that they were both in a consensual sexual relationship.
But once the girl turned 18, Chavan’s mother allegedly refused to agree to their marriage, prompting her to file the complaint against Chavan on 17 December 2019.
Five days later, on 23 December 2019, Chavan filed for anticipatory bail, before the sessions court. He was granted bail on 6 January 2020.
A month later, on 5 February, the girl challenged this order in the Bombay High Court, demanding cancellation of his anticipatory bail. The HC on 5 February cancelled the anticipatory bail granted to Chavan, who then challenged this order in the Supreme Court.
‘Lack of sensitivity by lower court’ — Bombay HC
According to Chavan’s petition, the minor girl had alleged that he used to follow her on her way to school.
Chavan is also alleged to have repeatedly raped the girl, almost a dozen times, since she was in Class 9. He allegedly threatened her with acid attack and injury to her family members if she disclosed the incident to anybody.
Chavan’s petition also claimed that they had entered into a notarised undertaking in June 2018 claiming that their sexual relations were consensual and agreeing to get married when she turns 18. However, when she reached the age, the petition alleged that Chavan’s mother refused to get the two married, prompting the girl to lodge the complaint against him.
The complaint by the girl also noted that she and her mother had asked the accused to marry her but they refused and hence she filed the complaint because he allegedly forcibly had sexual relations with her repeatedly when she was a minor.
The FIR against him was filed under sections 376 (punishment for rape), 417 (punishment for cheating), 506 (punishment for criminal intimidation) of the Indian Penal Code, and sections 4 (punishment for penetrative sexual assault) and 12 (punishment for sexual harassment) of the Protection of Children from Sexual Offences (POCSO) Act 2012.
The lower court had, however, granted him anticipatory bail, observing that the “possibility of false implication of the Applicant who is now a public servant cannot be ruled out”.
The judge concluded that the girl had “sufficient maturity” about the incident, because “she has with meticulous details mentioned about use of contraceptive by the Applicant”.
The Bombay HC, however, asserted that the “approach of the learned judge from such a reasoning clearly shows his utter lack of sensitivity in such serious matters”.
“Such an approach is a clear indication that the learned Judge utterly lacks competence. It is indeed a matter which deserves a serious consideration,” the high court added, cancelling the anticipatory bail granted to him.
Gender sensitisation among judges
In November last year, Attorney General K.K. Venugopal had told the Supreme Court that judges need to be educated on gender sensitisation.
Venugopal was assisting the court in a petition filed by nine women lawyers who appealed against a 30 July order of the Madhya Pradesh High Court, granting bail to a sexual offender on the condition that he would request the woman to tie a rakhi on his wrist on Raksha Bandhan and promise to protect her dignity in the future.
Venugopal had told the court that the direction given by a high court judge needs to be condemned as the judge was indulging in “plain drama”.
“The suggestion is the exam for judges and national judicial academy and state judicial academy must have programmes on gender sensitisation,” Venugopal said. “As far as the committee is concerned, a Supreme Court judgment should be put on the state information system which will go to subordinate courts.”