Rape or renege
2 Feb 2014 10:01 PM GMT
An activist from the Indian Independence movement and socialist leader Ram Manohar Lohia had famously said that between a man and a woman everything is permissible, so long as there is no use of force or breach of commitment. Lohia, however, did not go on to say as to what should happen if the commitment was not fulfilled.
That job was left for the courts and legal agencies. The legal system, however, has shown inconsistencies in deciding over what should happen if a man reneges on his promises made to his partner.
A Delhi court order that came out in January created headlines as it controversially termed pre-marital sex as ‘immoral and against the teachings of every religion’, but the judgment more importantly went on to state that sex on the promise of marriage is not rape. In his ruling, additional sessions judge Virender Bhat also said every act of sexual intercourse between two adults on the promise of marriage did not become rape. ‘When a grown up, educated and office going woman subjects herself to sexual intercourse with a friend or colleague on the latter’s promise that he would marry her, she does so at her own peril,’ the order stated.
But a Supreme Court order that came just about three months before this Delhi court order said that having consensual sex on the false promise of marriage amounted to rape and awarded life sentence to a man for having an affair for two years and impregnating the victim, a relative of the convict.
‘Convict, Naushad, a resident of Muzaffarnagar in Uttar Pradesh, “brazenly raped her (the woman) for two years or more giving her the false assurance that he would marry her, and as a consequence she became pregnant...We find the accused-respondent guilty of the offence of rape as defined under Section 375 of IPC,’ a SC bench comprising Justices SJ Mukhopadhaya and V Gopala Gowda said in an order passed in November, 2013.
While ruling in another case, the Supreme Court in May 2013 had, however, said that if a man has consensual sex with a woman with the intention to marry her, then it cannot be termed as rape, even though the marriage does not take place. The SC said this while hearing a case in which an accused was charged with rape after he failed to marry the girl with whom he had consensual sex on the promise of marrying her.
‘Coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had malafide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise,’ said the Supreme Court.
But legal experts deny that there is any inconsistency in these orders. Senior High Court advocate Ramesh Gupta says that all judgments are based on facts and the facts of each case are different. ‘A judge decides a case on the basis of the facts in that particular case. If the judge finds that there is a misconception of facts then he rules accordingly. If he finds that there was no misconception of facts the judgment will differ,’ Gupta explains.
Supreme Court advocate MR Shamshad says that one must understand the concept of consent before arriving at a conclusion in such matters. ‘In legal parlance, consent has to be free and informed. It should not be fraudulently obtained,’ Shamshad says. Under the Indian Contract Act, consent is said to be free ‘when it is not caused by coercion or undue influence or fraud or misrepresentation or mistake’.
Shamshad says that if a person obtains consent for sexual intercourse by using something illegal such as a threat to use force then the consent is not legal. But a promise of marriage or a promise per se for getting anything else is not illegal. ‘So if a person promises to marry someone, the promise is not illegal, and has sexual intercourse with someone without any compulsion, which again is not illegal unless of course the girl is a minor, then the entire act is legal and hence invokes no punishment,’ the Supreme Court advocate explains adding, ‘If a person fails to fulfill a promise of marriage then the concept of consent under “misconception” should not be good enough to charge the man for rape of the girl. He can be charged for at best be held guilty of a breach of promise or commitment.’
Talking about the inconsistencies in the various judgments, he says, ‘Criminal law depends on facts and even a slight change in facts can lead to new findings and new judgments in every single case. In a male dominated society, a destitute woman’s consent may not be an informed consent and that is why the Supreme Court and other courts have on many occasions held that sexual relations established on the basis of such promises amount to rape.’
Feminists, however, feel that such complaints of rape from women reflect the power equation of the relationship between men and women in our society. Noted activists, Nivedita Menon, says, ‘Such complaints of “sex on the false promise of marriage” often reflect the relative powerlessness of women in relationships, and in many social contexts in India, women are exploited by men who promise them marriage with no intention to marry them, and then abandon them, moving on to another woman or to a marriage with a more appropriate woman. These men take no responsibility for the abandoned woman, who would have performed all the domestic labour a wife performs, but is left with neither the economic nor social status of a wife.’
National Commission for Women chairperson Mamta Sharma says that the maximum number of complaints that come to the commission are about cases where men have reneged on promises and the women find that they have nowhere to go. She says that it is part of men’s behaviour which compels them to treat women as disposable glasses. Sharma, however, concedes that a broken promise can’t make a man guilty of rape, but she is quick to add that the NCW would want that such women are not left helpless and the law is amended to accommodate their concerns too.
‘Our contention is that women must get justice,’ Sharma says. Talking about what help can a woman expect in such a situation, Menon says, ‘I think the best recourse for a woman who has lived with a man who abandons her without marrying her is to claim a domestic live-in relationship and claim maintenance or a cash settlement. She would be better served by this.’
Menon goes on to decipher the mindset behind both legal stances.
‘Nevertheless, whether a judgment recognises this situation as rape or not, the reasoning is the same in both cases — sex outside marriage is illegitimate. A judgment recognising ‘sex on false promise of marriage’ as rape, argues that no good Indian woman would have consented to sex outside marriage, and therefore a woman who had sex on the promise of marriage would have given her consent to sex under false premises. A judgment that says the opposite, that this situation is not rape, argues the same — that no good Indian woman would have consented to sex outside marriage, but since this woman did, she is promiscuous and does not deserve the protection of the law. Neither kind of judgment is ‘progressive’ in feminist terms,’ she says.
‘We live in times of opportunities and we are not bound by traditional chains. Relationships are fickle. Break-ups are as common as potholes on city roads. Both parties make and break promises these days. The idea of holding someone responsible for rape if he fails to marry the woman he slept with is archaic,’ says Jyoti Yadav (name changed), just fresh out of a breakup.
That job was left for the courts and legal agencies. The legal system, however, has shown inconsistencies in deciding over what should happen if a man reneges on his promises made to his partner.
A Delhi court order that came out in January created headlines as it controversially termed pre-marital sex as ‘immoral and against the teachings of every religion’, but the judgment more importantly went on to state that sex on the promise of marriage is not rape. In his ruling, additional sessions judge Virender Bhat also said every act of sexual intercourse between two adults on the promise of marriage did not become rape. ‘When a grown up, educated and office going woman subjects herself to sexual intercourse with a friend or colleague on the latter’s promise that he would marry her, she does so at her own peril,’ the order stated.
But a Supreme Court order that came just about three months before this Delhi court order said that having consensual sex on the false promise of marriage amounted to rape and awarded life sentence to a man for having an affair for two years and impregnating the victim, a relative of the convict.
‘Convict, Naushad, a resident of Muzaffarnagar in Uttar Pradesh, “brazenly raped her (the woman) for two years or more giving her the false assurance that he would marry her, and as a consequence she became pregnant...We find the accused-respondent guilty of the offence of rape as defined under Section 375 of IPC,’ a SC bench comprising Justices SJ Mukhopadhaya and V Gopala Gowda said in an order passed in November, 2013.
While ruling in another case, the Supreme Court in May 2013 had, however, said that if a man has consensual sex with a woman with the intention to marry her, then it cannot be termed as rape, even though the marriage does not take place. The SC said this while hearing a case in which an accused was charged with rape after he failed to marry the girl with whom he had consensual sex on the promise of marrying her.
‘Coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had malafide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise,’ said the Supreme Court.
But legal experts deny that there is any inconsistency in these orders. Senior High Court advocate Ramesh Gupta says that all judgments are based on facts and the facts of each case are different. ‘A judge decides a case on the basis of the facts in that particular case. If the judge finds that there is a misconception of facts then he rules accordingly. If he finds that there was no misconception of facts the judgment will differ,’ Gupta explains.
Supreme Court advocate MR Shamshad says that one must understand the concept of consent before arriving at a conclusion in such matters. ‘In legal parlance, consent has to be free and informed. It should not be fraudulently obtained,’ Shamshad says. Under the Indian Contract Act, consent is said to be free ‘when it is not caused by coercion or undue influence or fraud or misrepresentation or mistake’.
Shamshad says that if a person obtains consent for sexual intercourse by using something illegal such as a threat to use force then the consent is not legal. But a promise of marriage or a promise per se for getting anything else is not illegal. ‘So if a person promises to marry someone, the promise is not illegal, and has sexual intercourse with someone without any compulsion, which again is not illegal unless of course the girl is a minor, then the entire act is legal and hence invokes no punishment,’ the Supreme Court advocate explains adding, ‘If a person fails to fulfill a promise of marriage then the concept of consent under “misconception” should not be good enough to charge the man for rape of the girl. He can be charged for at best be held guilty of a breach of promise or commitment.’
Talking about the inconsistencies in the various judgments, he says, ‘Criminal law depends on facts and even a slight change in facts can lead to new findings and new judgments in every single case. In a male dominated society, a destitute woman’s consent may not be an informed consent and that is why the Supreme Court and other courts have on many occasions held that sexual relations established on the basis of such promises amount to rape.’
Feminists, however, feel that such complaints of rape from women reflect the power equation of the relationship between men and women in our society. Noted activists, Nivedita Menon, says, ‘Such complaints of “sex on the false promise of marriage” often reflect the relative powerlessness of women in relationships, and in many social contexts in India, women are exploited by men who promise them marriage with no intention to marry them, and then abandon them, moving on to another woman or to a marriage with a more appropriate woman. These men take no responsibility for the abandoned woman, who would have performed all the domestic labour a wife performs, but is left with neither the economic nor social status of a wife.’
National Commission for Women chairperson Mamta Sharma says that the maximum number of complaints that come to the commission are about cases where men have reneged on promises and the women find that they have nowhere to go. She says that it is part of men’s behaviour which compels them to treat women as disposable glasses. Sharma, however, concedes that a broken promise can’t make a man guilty of rape, but she is quick to add that the NCW would want that such women are not left helpless and the law is amended to accommodate their concerns too.
‘Our contention is that women must get justice,’ Sharma says. Talking about what help can a woman expect in such a situation, Menon says, ‘I think the best recourse for a woman who has lived with a man who abandons her without marrying her is to claim a domestic live-in relationship and claim maintenance or a cash settlement. She would be better served by this.’
Menon goes on to decipher the mindset behind both legal stances.
‘Nevertheless, whether a judgment recognises this situation as rape or not, the reasoning is the same in both cases — sex outside marriage is illegitimate. A judgment recognising ‘sex on false promise of marriage’ as rape, argues that no good Indian woman would have consented to sex outside marriage, and therefore a woman who had sex on the promise of marriage would have given her consent to sex under false premises. A judgment that says the opposite, that this situation is not rape, argues the same — that no good Indian woman would have consented to sex outside marriage, but since this woman did, she is promiscuous and does not deserve the protection of the law. Neither kind of judgment is ‘progressive’ in feminist terms,’ she says.
‘We live in times of opportunities and we are not bound by traditional chains. Relationships are fickle. Break-ups are as common as potholes on city roads. Both parties make and break promises these days. The idea of holding someone responsible for rape if he fails to marry the woman he slept with is archaic,’ says Jyoti Yadav (name changed), just fresh out of a breakup.
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