Prolonged sexual relations as good as marriage? Supreme Court's patriarchal attitude invalidates concept of consent and matrimony
The overall attitude of the Supreme Court is problematic in this matter simply because the bench is examining the nature of relationships, i.e., scrutinising whether live-in relationships and marriages can be deemed similar in nature.
The judiciary in India is grappling with newer concepts as the structure of traditional families is being deconstructed in the country. With this, there is also a struggle to understand nuanced definitions of consent, bodily autonomy, person-hood and rights, with regard to the fundamental freedoms that women possess, and how this pieces together their decision-making power in relationships. The Supreme Court, in Aloka Kumar versus State of Karnataka, wrestled to understand the legitimacy of live-in relationships, and the criminal offence of rape or sexual assault.
As Livelaw reported, a bench of Justice Adarsh Kumar Goel and Justice S Abdul Nazeer considered a special leave petition against a Karnataka High Court judgment, and attempted to consider a controversial issue of 'rape on the promise of marriage'. The court sought the views of the central government in determining whether a "prolonged sexual relationship" or a live-in relationship should be considered a de facto marriage to pin legal liabilities on the male partner. The question for the court was posed as a legal conundrum: "whether, on account of long co-habitation, even if the relationship is held to be consensual and the petitioner is not held liable for the offence alleged, the petitioner can be fastened the civil liability treating the relationship to be de facto marriage in view of long cohabitation." According to the bench, there was a need for a sensitive interpretation so that the girl in the relationship is not subjected to exploitation or rendered helpless by the lack of a legal remedy. The Supreme Court appointed senior advocate, Abhishek Manu Singhvi as amicus curiae to assist with the matter.
The special leave petition was filed by a man who is seeking annulment of rape charges against him. The man was in a long-term sexual relationship with the woman for several years, but refused to marry her. The woman contended that she had sexual relations with him because of a promise of marriage, and thus, her consent was induced. The accused stated that it was a consensual relationship, and that there was no question of persuading her on the guise of marriage. The Karnataka High Court dismissed the plea holding that whether this woman "surrendered herself to the lust of the accused or not" on the misconception of marriage was dependent on her mental capacity and critical abilities which have to be assessed by the trial court.
The overall attitude of the Supreme Court is problematic in this matter simply because the bench is examining the nature of relationships, i.e., scrutinising whether live-in relationships and marriages can be deemed similar in nature. But is that necessarily a relevant aspect here? In my opinion, no. Questions such as the rights of the woman in the "prolonged" sexual relationship are definitely relevant, given that the structure of marriages, unions and families have changed enormously in the past several decades. But the fulcrum of this case lies in examining consent and consensual relationships, and the most significant question here is whether breaking the "promise of marriage" amounts to rape?
The Supreme Court order, in the present case, talks about the woman being "subjected to any exploitation" during the relationship, and whether "she was induced for the intercourse during the cohabitation on that consideration and not by free consent". This kind of language completely invalidates the place of consent in a consensual relationship. The court assumes, in an extremely problematic and patriarchal way, that the woman in the relationship is someone without any agency and will be "rendered helpless" if there's no legal remedy sought out for her.
In a 2011 case — State of Uttar Pradesh versus Chhotey Lal — attempts were made to explain what consensual sexual act is - "Submission of the body under the fear of terror cannot be construed as a consented sexual act. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances." According to section 90 of the Indian Penal Code, consent cannot be said to be given if a person is under fear of injury, or a misconception of fact".
In the case, the bench was reluctant to look at the intersection of agency, bodily autonomy (and its violation thereof) and consent, a significant conceptional relationship to look at when considering such a controversial subject of 'rape on the promise of marriage'. By nuancing the relationship of bodily autonomy and affirmative consent, the Bench could have constructed the right to choice for women within a sexual relationship, a live-in relationship or a marriage. It should be kept in mind that the nature of the relationship between a woman and a man has no bearing on the legal value of consent. Instead the bench decided to question the nature of the relationship between the man and woman to pinpoint specific liabilities of the man, again steering the tone of the conversation away from a rights framework.
Women, today, negotiate several social pressures especially in the realm of marriage - there are cultural fault lines that women today are expected to navigate - the decision to marry, the parental approval after choosing a partner, navigating intercaste/inter-religious relationships and pre-marital expression of sexuality and the cultural shame attached to it. Despite this, our society continues to tell women that their value as human beings comes from the institution of marriage, and their place in the family. Often women maybe deceived into a sexual relationship, on the promise of marriage, and often women may be in live-in relationships with men for years before the men walk away without marrying them. Consent in these situations may be manufactured, but these cannot be construed as rape. Rape is a violation of bodily autonomy and of consent to a sexual act, and cannot be used to underpin such cases.
There is a need to situate these cases in the normative framework and the law, otherwise there will never be a rights-based understanding of consensual relationships in India. A feminist lens is required to break down such violations in a way that solutions are based not on protectionism but on rights. There is also a definite need to keep in mind the nature of patriarchal controls over women's sexuality in India, which might, in a way, create a suspended or conditional consent based on the man's agreement to marry the woman. Institutions of power, including the Supreme Court, have a responsibility, to debate on the intersection of suspended consent and bodily autonomy, especially after the horrifying judgment on the "feeble no" in the Farooqui case in September 2017.
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