'Consensual sex of live-in partners not rape if man fails to marry': SC ruling tackles sensitive issues like consent, but lacks nuance

The Supreme Court, on 22 November, 2018, held that if a person had not made the promise to marry with the sole intent to seduce a woman to indulge in sexual acts, such an act would not amount to rape.

The bench, which comprised of Justice AK Sikri and Justice S Abdul Nazeer, was considering an appeal to reject a First Information Report filed by a Maharashtra-based nurse against a doctor, with whom she had been in a consensual live-in relationship. While deciding on the matter, the bench grappled with sensitive issues such as consensual sexual relationships, rape and consent.

The bench affirmed that there is a definite distinction between a rape charge and consensual sex:

"The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception." The judges also wanted to distinguish between a "mere breach of promise and not fulfilling a false promise" stating that "[i]f the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape."

 Consensual sex of live-in partners not rape if man fails to marry: SC ruling tackles sensitive issues like consent, but lacks nuance

File image of Supreme Court of India. PTI

While the judgment takes a hard look at consensual relationships, rape, and consent itself, and is progressive to some extent, it lacks nuance. For instance, the judgment goes into the length and breadth of the concept of consent, but fails to look at it from the positionality of women and their agency within relationships, which gives rise to the flimsy notions of 'breach of promise to marry' and 'sex on false promise of marriage'. Without such nuance in this judgement, there is a likelihood that there will be continued conflation of rape with "false" allegations of sexual assault in the future, where the man refuses to marry his partner after sexual intercourse.

According to National Crime Report Bureau (NCRB) data, a total of 32,443 rape cases were reported in 2015. Out of these, in 7,655 cases, the accused was known to the victim, and had promised to marry her, and in 705 of these cases, the accused was a live-in partner or husband (separated/ex) of the complainant. In 2016, Delhi Police data revealed that one-fourth of the total rape cases registered in the national capital were reported for cases that indicated "sex under a false promise of marriage". In 2013, a Crime Investigation Department report indicated that "sex after a false promise of marriage" was the leading category within registered rape cases in Maharashtra. This kind of data shows that there is currently a gap between what the law states, and the remedies available to women, who believe that there has been a harm to their right to bodily autonomy.

Moreover, over the years, the judiciary has had murky views on this issue.

In 2007, hearing a case the Supreme Court stated that "sex with the consent of a girl on a promise to marry her will not constitute rape unless it was shown that such consent was obtained by the man under coercion or threat", but the bench stated that there was no straitjacket formula for determining whether the consent was voluntary or coerced.

In 2013, the Supreme Court heard Deepak Gulati vs. State of Haryana, where the Punjab and Haryana Court had convicted the appellant in a rape case filed by a 19-year-old woman and her family. The facts indicated that the man had "induced" her to get married, and had "sexual intercourse with her against her wishes behind the bushes" promising to marry her. The man was acquitted of all charges, as the Supreme Court affirmed that for such cases to be considered rape, it has to be proved that the man had "clandestine motives".

In 2015, a judgment by the Delhi High Court, the Bench ruled that if a woman consents to have sexual relations with a married man on the promise of marriage, and gets pregnant, it is an act of promiscuity, and not rape. In 2016, the Bombay High Court granted bail to a man in a similar case, stating that "when the woman is educated and mature, she can say no."

Both the judiciary as well as activists have struggled with the issue of 'sex on the promise of marriage' for a long time. Reducing this to a rape versus consensual sexual relationship dichotomy is an oversimplified approach in a country where women are raised to think that sexual intercourse is acceptable only within marriages. The Supreme Court, in this judgment, does not resolve the flawed concepts of 'promise to marry' and 'breach of promise to marry', thereby, continuing to locate a woman's respectability and dignity in matrimony.

It is important to understand that national and state data indicates that women and their families continue to report such incidents under Section 375 (rape), section 376 (punishment for rape) and section 417 (cheating) - a triangulation of provisions that legally cannot support a woman who feels cheated after being "promised" marriage. Such cases are often considered "false rape cases", and dismissed. In fact, in 2017, Justice Pratibha Rani stated: "[W]omen use the law as a weapon for vengeance and personal vendetta. They tend to convert such consensual acts as an incident of rape may be out of anger and frustration thereby defeating the very purpose of the provision. This requires a clear demarcation between the rape and consensual sex especially in the case where complaint is that consent was given on promise to marry." It is also extremely pertinent to understand that all this is happens in a country where a large percentage of sexual violence against women goes unreported.

There is an urgent need to engage on this issue because it is deeply entrenched within the institution of marriage - on which Indians place a high premium, and where the law and policy is murky with regard to remedies. While examining this issue, especially as the highest court in the country, the Bench, in this case, should have looked at the intersections of positionality of women in relationships, consent, the right to choice and how the institution of heterosexual marriage changes the status of sexual intercourse. Without such dialogues, we will likely continue to be perplexed about how such cases should be resolved.

Updated Date: Jan 04, 2019 13:47:58 IST