On Tuesday, the Supreme Court set aside a Gujarat High Court ruling that permitted the quashing of a rape case based on an “amicable settlement” between the parties involved (*XYZ v. State of Gujarat and Anr*).
A Bench consisting of Justices Abhay S. Oka and Augustine George Masih remanded the case back to the High Court, expressing concern that there was no documentation confirming that the rape survivor had been made aware of the settlement’s terms.
“What is this? How can the High Court allow this without even consulting the victim? There is no indication that she was informed of the contents. The woman is illiterate, and it hasn’t been established that anyone explained the settlement to her. Someone must do this. She simply places her thumb impression. There should be a confirmation from someone else that the contents were explained to her,” Justice Oka noted.
The Supreme Court asserted that the High Court’s judgment could not be upheld without such verification. The Court recommended that, in such cases, there should be an affidavit from a third party attesting that the settlement was explained to the survivor.
“Typically, an affidavit is submitted by an illiterate person who provides a thumb impression, and there should be an endorsement from a third party stating that the content of the affidavit was explained to the victim. The High Court should have required the victim to appear in person to verify whether she was informed about the affidavit’s contents,” the order stated.
The Court instructed the High Court to validate the settlement and determine whether the rape case should be dismissed.
“The High Court cannot sustain its impugned judgment without verifying the settlement. We remand the matter back to the High Court with instructions for the appellant-victim to appear before the Court. Thus, we set aside the impugned judgment and remand the case back to the High Court,” the Supreme Court declared.
This decision stemmed from an appeal challenging a September 2023 Gujarat High Court order in which Justice Samir J. Dave had acknowledged an affidavit from the rape survivor asserting that the dispute had been amicably resolved.
During the Supreme Court hearing, Senior Advocate Indira Jaising, representing the appellant, pointed out that the affidavit detailing the settlement was written in Gujarati, a language unknown to the rape survivor. She stressed that the survivor, an illiterate Adivasi woman, had not consented to any supposed “amicable settlement.”
“How can the High Court endorse this? Will this Court allow such practices in Gujarat? I want to know who her lawyer is. Please retrieve the records. This affidavit was not even read to her,” Jaising contended.
Another lawyer suggested that an inquiry be conducted to clarify any doubts about the authenticity of the settlement.
“I asked the lady’s advocate whether she had signed the affidavit, and I was informed that she did so with the notary. An inquiry is necessary to ascertain whether she visited the notary’s office and who represented her,” the lawyer stated.
The Supreme Court concurred that the High Court could investigate the prior settlement.
“The High Court has the authority to investigate how the affidavit was executed and how the appellant’s thumb impression was obtained without explaining the contents of the affidavit to her. The High Court can order an inquiry by a judicial officer if required,” it added in its order.
Senior Advocate Jaising represented the appellant along with Advocate Paras Nath Singh, while Senior Advocate Rakesh Khanna and Advocate Savita Singh appeared for the accused. Senior Advocate Ruchi Kohli and Advocate Swati Ghildiyal represented the State of Gujarat.
