Marriage and a criminal case cannot go hand in hand

Rape is perhaps the most harrowing crime one can commit against a living human being. There is hardly any other word that may spread such negativity. In the philosophical and theoretical framework of criminal jurisprudence, crimes are broadly categorised into two types: one, compoundable offenses (those that can be settled between parties), and two, non-compoundable offenses (those that cannot). Rape is neither a regular nor an ordinary crime, and this is precisely why it requires a special law, different from general penal law.

Recently, a well-known singer was arrested on rape charges. According to the case filed against him, he allegedly confined the woman in his house and raped her for months. This is not the first such accusation against him; his wife had previously filed a case of abuse, making it likely that he is a habitual offender.

Taking the complaint into cognizance, the police arrested the singer. Following a petition from the complainant and a judge’s directive, the singer married the complainant while in custody at the Keraniganj prison.

Rape is undoubtedly a tool of male sexual violence, a brutal crime that seeks to subjugate women through force. In this case, the victim was compelled to enter into a “sacred” bond of marriage with her abuser. And yet, rape carries the maximum penalty of death under the law.

This is not the first such incident. In the past too, accused rapists have married their victims - often while in custody. The accused in such cases argue that even if bail is granted after marriage, the criminal case still stands. But this is a deeply flawed assumption. It is naive to think that both marriage and a rape trial can coexist. In reality, only one tends to survive. More importantly, these coerced marriages deny victims the dignity they deserve.

The legal basis for ordering a rape victim to marry her alleged rapist while the latter is in custody remains unclear. Such orders are often given by judges considering societal pressures and the victim’s harsh realities. Many survivors make these decisions fearing further harm to their future.

In many cases, law takes shape through courtroom practice and interpretation. Long-standing legal customs often contribute to what is accepted as law. In a courtroom, how a lawyer interprets the law and how a judge receives that interpretation are deeply influenced by personal beliefs and ideology. These ideologies are shaped by political outlook, religious conditioning, gender identity, and social power structures. A proper understanding of Critical Race Theory and intersectionality — where one’s birth identity results in layered discrimination — is essential. It’s worth questioning how familiar our judges and lawyers are with those concepts.

India and Bangladesh share similar legal and socio-cultural structures. In India too, there have been cases where rape-accused individuals were granted bail on condition of marrying the victim — either at her request or due to social pressure. The phrase “Marry Your Rapist Law” has emerged to describe this alarming trend. Bangladesh, similarly, has seen repeated instances of bail granted under the condition of marriage.

When Justice M Enayetur Rahim of the High Court granted bail in a rape case on the condition of marriage, it sparked widespread debate (at the time, similar bail conditions were being granted in other cases too). According to Article 111 of the Constitution, Supreme Court verdicts are binding — and lower courts are following suit. This unchecked practice of granting bail in exchange for marriage could pave the way for future rapists to escape accountability. The message this sends is deeply disturbing.

Section 9 of the Women and Children Repression Prevention Act, 2000 stipulates death as the maximum punishment for rape. Yet victims are being forced to live with their perpetrators.

Prothom Alo spoke with eight victims who married their accused rapists. None of them were able to sustain the marriage, and many struggled to gain legal recognition for children born of the rape. One victim was even murdered. In addition, Prothom Alo interviewed five more victims and their families who, out of social shame, saw marriage with the rapist as the only option.

Families of teenage girls who became pregnant from rape expressed helplessness, saying, “There’s no option but marriage”. The consequences of such marriages — violence, divorce, even death — are evident in Prothom Alo’s investigative report.

To better understand these issues, I spoke to an additional district judge. He said that court orders of this nature stem from what could be called a “Social Demand Theory.” According to him, the judiciary should revisit its stance on the issue through thorough research. But above all, bail on the condition of marriage should never become normalised — for if it does, the law and justice system will be defeated by patriarchal violence.

* MM Khalekuzzaman, Supreme Court Lawyer

* Opinions expressed are the author’s own