In a country like India, when we talk about sexual offences, we subconsciously also refer to the miserable societal conditions of women. Although the Indian judiciary and the legislature have managed to bring out substantial number of laws to prevent offences against women, the practical implications do not reflect a complimenting picture.

Even if our Indian Penal Code is quite comprehensive regarding offences against women, there is a particular offence that often gets overlooked and that is the lack of penalty on marital rapes. Marital rape appears as an exception to rape in Section 375 of the Indian Penal Code. Among the several legal updates, one update refers to a judgment passed by the Allahabad High Court in the case of Imran v. State of Uttar Pradesh wherein the Court strictly laid down that marriage or compromise in sexual offences cannot become a ground for granting bail. While stating the same, the judge mentioned that granting bail on such grounds is against fair justice.

Equality, Justice and Liberty is the trinity of fair trial recognised in the administration of justice of India where the affluent and the "lowly and lost" have the equality of access to justice in the administration of justice in general and the criminal justice system in particular.[1]

If the traits of a fair trial are applied to the present case, then it justifies the judgment which indirectly means that a heinous offence should be treated as an offence without any excuse of having to escape from its penalty. If marriage and compromise are sought as a solution to get bailed out, then there are high chances that commission of such offences will increase.

When we study criminal law, we come across theories of punishment. One out of such theories is the Deterrent Theory. Deterrent Theory refers to bringing fear in the mind of the offender so that the offence isn't repeated. In a country where marital rape is not declared as an offence, marriage of the offender and the victim is definitely not a factor for instilling fear in the mind of the offender. Hobbes talked about the deterrence theory in context to his proposed theory of social contract, he stated that individuals are punished for violating the social contract and deterrence is the reason for it as it strikes a balance to the agreement made.[2]

Apart from deterrence, if we look at the other theories of punishment, then it is clearly visible that marriage or compromise with the victim does not satisfy the purpose of any other theory as well such as retributive theory, preventive theory, reformative theory or compensatory theory. Hence, the judgment of the Allahabad High Court gets justified in addressing the principles of fair trial.

In such trying times like these, it has become extremely necessary to focus on maintenance of public health. When we talk about Public Health, we refer to Positive Health. By Positive Health, we mean and include physical as well as mental health. Proper maintenance of Public Health refers to prevention of spread of diseases and to ensure that mental health of an individual is not affected negatively. This judgment works as a boost for bringing out positivity in human minds as it depicts a hope of justice for victims of sexual assault.

While passing this judgment, the judge made a reference to the case of Aparna Bhat and Ors. v. State of Madhya Pradesh and Anr.[3] This case was an appeal against an order passed by the Madhya Pradesh High Court where the accused of a sexual assault was asked to get a rakhi tied by the victim as a condition for bail. While passing the judgment, the Supreme Court stated as follows:

The role of all courts is to make sure that the survivor can rely on their impartiality and neutrality, at every stage in a criminal proceeding, where she is the survivor and an aggrieved party. Even an indirect undermining of this responsibility cast upon the court, by permitting discursive formations on behalf of the accused, that seek to diminish his agency, or underplay his role as an active participant (or perpetrator) of the crime, could in many cases, shake the confidence of the rape survivor (or accuser of the crime) in the impartiality of the court.

With this, the Apex Court made it very clear that the primary task of the judiciary was to ensure justice to the people who sought justice as the judiciary was their only hope. In a country like India which follows a system of common law mixed with civil law, passing orders of tying rakhi to get bail granted sets out a very erroneous precedent for the legal fraternity. This not only dilutes the punishment, but also diminishes the gravity of the offence.

The number of crimes against women has been rising massively in India. If we normally have a glance at the statistics regarding sexual harassment cases, the data up to 07.02.2020 shows that out of 539 complaints, only 164 have been resolved. This shows the minimal interest of the authorities towards handling of such cases. At the same time, if the judiciary also fails to show its rapid responsiveness towards this issue, the number of offences will just rise and the legal provisions will merely remain as plain writings with no effectivity.

Hence, it is a positive mark on the timeline of Indian Judiciary that now the court have begun to understand the effectiveness of fair trial and make proper use of their power of setting our precedents. With such cases, it may become easier for women to approach the judiciary to seek justice when wronged due to sexual offences.

End-Notes:

1. Dr. K. L. Bhatia, Fair Trial in Criminal Proceedings in India, available at
2. Deterrence Theory as a Theory of Punishment' Law Times Journal [2019]
3. SCC Online SC 230

Written By: Dr Farrukh Khan is an Advocate and Managing Partner of Law Firm- Diwan Advocates. Somya Mishra is an Advocate, working with Diwan Advocates.