Last week, Samajwadi Party leader Mulayam Singh Yadav created a furore by opposing the death penalty for rape on the grounds that “boys make mistakes”. One of his arguments was that often, women complain of rape after they have “differences” with men with whom they were in love. The Samajwadi Party’s Maharashtra chief Abu Azmi followed this up with his own outrageous statements, insisting that “rape, with or without consent, should be punishable as per Islam” and “If you agree to be with someone, it’s okay. But the moment something goes wrong...one gets angry and starts blackmailing."
These regressive views fail to distinguish between consent and lack of it, and conveniently conflate rape with false accusations of sexual assault. In a country where most sexual abuse against women goes unreported, false rape allegations are few and far between. But among all the rape cases registered in the country, there is a grey area that perhaps provides fodder to the warped views of people like Yadav and Azmi: cases of sex on the false promise of marriage.
Every year, several women filing rape complaints after the men they consented to have sex with reneged on their promise to marry them. In fact, a Crime Investigation Department report released in November 2013 listed "sex after a false promise of marriage" as the leading category within registered rape cases in Maharashtra.
Far removed from the flippancy of politicians, these cases have been the subject of serious debate amongst lawyers and women’s rights activists since the 1980s. Can consensual sex be retrospectively called rape if the promise of marriage is breached? Can an adult woman’s consent only be valued in the context of marriage? Or is this about a man deceiving a woman by making false promises? If so, would it be a case of rape, or of cheating?
Activists have a range of responses to these difficult questions.
For some, such cases categorically fall under rape, not cheating. “There is a need to understand the notions of passive submission and wrongfully obtained – even if not physically forcefully obtained – consent,” said activist and lawyer Kamayani Bali Mahabal. “If the man promised marriage to get consent, he knew the power of the ‘promise to marry’, and he obviously also knew how breaking that promise could affect the woman.” In the Indian context, this could mean severe social stigma and economic disadvantages, particularly in cases where women become pregnant.
At the other end of the spectrum, however, there are experts who would not define such incidents as rape. “I see a lot of such cases in court these days and I feel it is a misuse of rape laws,” said Vandana Shah, a Mumbai-based lawyer who believes that a breach of promise should be seen as cheating or be tried under the Indian Contracts Act, instead of the rape laws.
Technically, there is no clause in the Indian Penal Code that specifically labels the breach of a marriage promise as rape. Section 90, while defining "consent" in general, states that if consent is given “under a misconception of fact” and if the perpetrator is aware of this, then it cannot be deemed as consent. Courts across the country often use this section of the Indian Penal Code to interpret cases of rape and breach of promise. Courts also tend to invoke Section 375 (4), according to which a man is said to commit rape on a woman if he "knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married".
Over the years, courts have come up with varying judgements, although most tend to interpret breach of promise as rape. In November 2013, for instance, the Supreme Court awarded life imprisonment to a man from Muzaffarnagar for having sexual relations with a woman for two years by leading her to believe he would marry her. By not eventually marrying her, the Court ruled that the man had committed a “breach of trust” and used her body as a "plaything". There are times, however, when courts have acquitted men of rape charges or classified such cases as cheating.
Women's activist Kavita Krishnan is clear that Section 375 (4) should not be invoked in cases of breach of promise to marry. "It should apply in very specific circumstances, such as a man deceiving a woman about his identity or trying to pass off a fake marriage," said Krishnan, the secretary of the All India Progressive Women's Association. In cases of breach of promise, if marriage were to make everything alright, she believes it would be unfair to term it as rape. "For this, we should offer civil damages," she said.
Other experts believe breach of promise is still a grey zone, especially in situations where men and women have had a mutual understanding about the kind of sexual relationship they are in. “It may not always be a case of rape, although it is important to keep in mind the differential locations that men and women occupy in society, thereby suggesting that the impact of the sexual relationship before marriage or with the promise to marry (consensual or forced), is always different on the two,” said Rukmini Sen, assistant professor at the School of Liberal Studies in Delhi’s Ambedkar University.
The bone of contention for feminists is the perception of consent in cases of breach of promise. “The assumption in Indian society is that women are raised to think they can only have sex within marriage, and that they would never give their consent if marriage was not on the horizon,” said Srimati Basu, a legal anthropologist at the University of Kentucky in the US. “By locating respectability in marriage and not consent, this notion takes away the sexual agency of women.”
But the way laws are interpreted is merely a reflection of the socio-cultural premium that Indians place on marriage as an institution. While Krishnan believes that Indians need more discussion and clarity about the laws, other activists believe law reforms can have limited impact without a larger social debate.
“We need to have more dialogues, among various people in society, about issues of consent, choice, partnership, trust and marriage, primarily to challenge the high premium attached to heterosexual marriage as an institution,” said Sen.
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These regressive views fail to distinguish between consent and lack of it, and conveniently conflate rape with false accusations of sexual assault. In a country where most sexual abuse against women goes unreported, false rape allegations are few and far between. But among all the rape cases registered in the country, there is a grey area that perhaps provides fodder to the warped views of people like Yadav and Azmi: cases of sex on the false promise of marriage.
Every year, several women filing rape complaints after the men they consented to have sex with reneged on their promise to marry them. In fact, a Crime Investigation Department report released in November 2013 listed "sex after a false promise of marriage" as the leading category within registered rape cases in Maharashtra.
Far removed from the flippancy of politicians, these cases have been the subject of serious debate amongst lawyers and women’s rights activists since the 1980s. Can consensual sex be retrospectively called rape if the promise of marriage is breached? Can an adult woman’s consent only be valued in the context of marriage? Or is this about a man deceiving a woman by making false promises? If so, would it be a case of rape, or of cheating?
Activists have a range of responses to these difficult questions.
For some, such cases categorically fall under rape, not cheating. “There is a need to understand the notions of passive submission and wrongfully obtained – even if not physically forcefully obtained – consent,” said activist and lawyer Kamayani Bali Mahabal. “If the man promised marriage to get consent, he knew the power of the ‘promise to marry’, and he obviously also knew how breaking that promise could affect the woman.” In the Indian context, this could mean severe social stigma and economic disadvantages, particularly in cases where women become pregnant.
At the other end of the spectrum, however, there are experts who would not define such incidents as rape. “I see a lot of such cases in court these days and I feel it is a misuse of rape laws,” said Vandana Shah, a Mumbai-based lawyer who believes that a breach of promise should be seen as cheating or be tried under the Indian Contracts Act, instead of the rape laws.
Technically, there is no clause in the Indian Penal Code that specifically labels the breach of a marriage promise as rape. Section 90, while defining "consent" in general, states that if consent is given “under a misconception of fact” and if the perpetrator is aware of this, then it cannot be deemed as consent. Courts across the country often use this section of the Indian Penal Code to interpret cases of rape and breach of promise. Courts also tend to invoke Section 375 (4), according to which a man is said to commit rape on a woman if he "knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married".
Over the years, courts have come up with varying judgements, although most tend to interpret breach of promise as rape. In November 2013, for instance, the Supreme Court awarded life imprisonment to a man from Muzaffarnagar for having sexual relations with a woman for two years by leading her to believe he would marry her. By not eventually marrying her, the Court ruled that the man had committed a “breach of trust” and used her body as a "plaything". There are times, however, when courts have acquitted men of rape charges or classified such cases as cheating.
Women's activist Kavita Krishnan is clear that Section 375 (4) should not be invoked in cases of breach of promise to marry. "It should apply in very specific circumstances, such as a man deceiving a woman about his identity or trying to pass off a fake marriage," said Krishnan, the secretary of the All India Progressive Women's Association. In cases of breach of promise, if marriage were to make everything alright, she believes it would be unfair to term it as rape. "For this, we should offer civil damages," she said.
Other experts believe breach of promise is still a grey zone, especially in situations where men and women have had a mutual understanding about the kind of sexual relationship they are in. “It may not always be a case of rape, although it is important to keep in mind the differential locations that men and women occupy in society, thereby suggesting that the impact of the sexual relationship before marriage or with the promise to marry (consensual or forced), is always different on the two,” said Rukmini Sen, assistant professor at the School of Liberal Studies in Delhi’s Ambedkar University.
The bone of contention for feminists is the perception of consent in cases of breach of promise. “The assumption in Indian society is that women are raised to think they can only have sex within marriage, and that they would never give their consent if marriage was not on the horizon,” said Srimati Basu, a legal anthropologist at the University of Kentucky in the US. “By locating respectability in marriage and not consent, this notion takes away the sexual agency of women.”
But the way laws are interpreted is merely a reflection of the socio-cultural premium that Indians place on marriage as an institution. While Krishnan believes that Indians need more discussion and clarity about the laws, other activists believe law reforms can have limited impact without a larger social debate.
“We need to have more dialogues, among various people in society, about issues of consent, choice, partnership, trust and marriage, primarily to challenge the high premium attached to heterosexual marriage as an institution,” said Sen.
