The Bombay high court had cancelled bail granted by a sessions court to the accused at the complainant’s behest in the first case
Chief Justice of India SA Bobde triggered a controversy on Monday with his remarks in two cases. In one case, he asked a man accused of rape in a relationship with a 16-year-old, whether he was willing to marry the complainant. The man faces accusations of rape, cheating and criminal intimidation, besides charges under the stringent Pocso Act designed to prevent exploitation of children.
The CJI’s remark was panned on social media.
In another case, Bobde asked if a man’s sexual conduct, however brutal, could attract rape charges if it was made by his partner.
The Bombay high court had cancelled bail granted by a sessions court to the accused at the complainant’s behest in the first case. The complainant claimed that Mohit Subhash Chavan, 23, had raped her repeatedly when she was 16 and was legally incapable of consenting to sexual intercourse. She had alleged in the HC earlier that his ‘influential family’ made her sign an affidavit that said the intercourse was consensual and the family would ensure their marriage. Chavan filed an appeal against the HC order in the SC. He was represented by advocate Anand Dilip Langde, who argued that Chavan was a government servant and would lose his job were he to be arrested.
At this point, the CJI said: “We are not forcing you to marry her. Let us know if you want to marry her. You should have thought about this before seducing and raping a young girl. You knew you were a government servant.” The advocate later returned with instructions from his client that he had initially ‘offered to marry her’, but she ‘rejected’ it and it was not possible now as he was married. Langde also said the charges were yet to be framed. The bench eventually allowed Chavan to withdraw his petition with the liberty to apply for regular bail in four weeks. “However, the petitioner shall not be arrested till then,” the bench, which also included Justices AS Bopanna and V Ramasubramanian, said.
In the second case a complainant had accused a man of repeatedly raping her, while they lived together, under pretext of marrying her. The complainant was represented by advocate Aditya Vashishth and the accused, Vinay Pratap Singh, by senior advocate Vibha Dutt Makhija. The complainant alleged that the man raped her brutally throughout their relationship. The complainant produced medical evidence in SC to prove brutal rape during the relationship. Allahabad high court had rejected the defendants’s bail plea, after which he moved the SC.
Referring to the Indian law, which doesn’t recognise marital rape as an offence, the CJI said: “How can sexual conduct, however brutal, amount to rape if it is a marriage?” Rights activists have been demanding that the law be changed to make rape in a marriage a punishable offence. However, in this case, the couple were never married.
The bench stayed the man’s arrest for 8 weeks and allowed him to move for discharge after some evidence was led in the case. “There shall be stay of arrest of the petitioners for eight weeks. Thereafter, the trial court will decide the question of the liberty of the petitioners,” the CJI’s bench said. No charge sheet has been filed yet in the case by the Uttar Pradesh Police.