‘Justice must not be diluted by societal norms or convenience’ | Photo Credit: Getty Images/iStockphoto
The Allahabad High Court, in Atul Gautam vs State of Uttar Pradesh (2025), recently granted bail to a man who has been accused of raping his inter-faith live-in partner on the ‘promise of marriage’. The bail was granted on the condition of his marrying the survivor under the Special Marriage Act and arranging for a deposit of ₹5 lakh.
In another case, Abhishek vs State of Uttar Pradesh and Ors. (2024), the same High Court had granted bail to a rape accused on the condition that he marry the survivor and care for both her and their newborn child. This reasoning aligns with a precedent set in Ramashankar vs State of Uttar Pradesh (2022), wherein bail was granted on similar grounds.
On the court and state
These cases raise key issues: first, whether courts can impose bail conditions requiring a rape accused to marry the survivor and assume responsibility for her and the child. And, second, whether the state is neglecting its responsibility to provide welfare measures for survivors and children born out of such crimes.
In Aparna Bhat vs State of Madhya Pradesh (2021), the Supreme Court of India, while issuing guidelines for bail conditions, lay emphasis on the point that courts must ensure that the conditions of bail strictly prohibit any contact between the accused and the survivor to avoid secondary trauma. The bail conditions which mandate that the accused marry the survivor, violate this guideline.
The Court also directed that the bail conditions should not reinforce gender stereotypes and patriarchal notions on women and must strictly comply with the Code of Criminal Procedure, 1973. While dealing with Section 437(3)(c) of the Code, the Court, in Kunal Kumar Tiwari vs State of Bihar (2017), observed that the courts may impose bail conditions in the interest of justice. However, such conditions cannot be arbitrary or extend beyond the ends of the provision. However, the approach adopted by courts (Atul Gautam) appears to stem from regressive societal perceptions that equate a woman’s dignity with her marital status.
Impact on survivor
Such reasoning perpetuates the problematic belief that marriage is a remedy for rape, restoring an alleged loss of purity or honour. This not only violates the autonomy of the survivor but also legitimises an unequal and coercive marital relationship. Such conditions create a perverse incentive for the accused to manipulate the survivor, furthering the possibility of abuse under the guise of reconciliation. The courts inadvertently reinforce a narrative where the survivor is forced into a dependent relationship with the accused, often without genuine consent. In such cases, marriage might result in abusive behaviour under legal protection. The prospect of marriage often becomes a strategic escape route for the accused, allowing bail, compromises, or even leniency during sentencing.
Courts that suggest or facilitate such marriages inadvertently risk legitimising the heinous act under the guise of matrimony. Such conditions undermine the integrity of the trial process and the survivor’s quest for justice.
The responsibility of ensuring the welfare of survivors and their children lies squarely with the state. In Re: Right to Privacy of Adolescents (2024), the Court held that the state must provide essential support such as shelter, food, education, and counselling for victims. The lack of an adequate support system often leaves survivors with no choice but to rely on their perpetrators. This reliance not only perpetuates cycles of exploitation but also violates their fundamental right to live with dignity under Article 21 of the Constitution. By failing to provide holistic support to victims, the state shifts its responsibility to the judiciary, leading to solutions that may conflict with constitutional principles. This creates a perverse mechanism where victims are coerced into dependence on the accused, with the courts further enabling the state’s neglect.
A conflict of interest
Granting bail on the condition of marriage during the pendency of a trial is particularly problematic. While considering the question of granting bail, courts are not supposed to look into the merits of the case, as the accused’s guilt is not to be determined at this stage. Bail hearings and conditions should not influence the trial. However, imposing marriage between the accused and the survivor as a bail condition has irreversible effects, altering their relationship and interpersonal dynamics. Such conditions may affect the trial’s outcome and the survivor’s ability to testify freely.
Moreover, if marriage is deemed as a measure for the survivor’s welfare, it raises concerns about the court’s impartiality in convicting and sentencing the accused, as this could conflict with the survivor’s welfare if she becomes dependent on the accused. These practices demand a critical re-evaluation of the judiciary’s approach to cases involving rape and other forms of sexual violence. Justice must not be diluted by societal norms or convenience; it must prioritise the rights, the dignity, and the autonomy of survivors, ensuring that legal remedies do not perpetuate their trauma or compromise the principles of fairness.
Eesha Shrotriya is an Assistant Professor and Co-Director, Centre for Criminal Justice Studies at the School of Law, RV University. Shantanu Pachauri is an Assistant Professor and Co-Director, Centre for Criminal Justice Studies at the School of Law, RV University
Published – February 12, 2025 12:08 am IST
