The failure to understand the situation of a woman having sexual relations, of her own volition, on a future promise of marriage has subjected the law on rape to gross misuse. (Credit: Pexels) Two much-in-love college mates, belonging to different castes, would often discuss the impending challenge of convincing their families about their marriage. Driven by the force of their mutual affection, however, their emotional and physical relationship continued. With the boy distancing himself eventually, under the pressure of his family’s opposition, the girl approached the police wanting to file a case of rape against her boyfriend of many years.
Police stations around the country receive thousands of such applications each year from women alleging “rape” when long-term relationships, including live-in-relationships, come to an end or when there is family pressure to register an FIR once a woman’s sexual relationship is discovered.
The case for rape is made out from a joint reading of Sections 375 and 90 of the Indian Penal Code. As per Section 375, a man is said to have committed rape if he has sexual intercourse with a woman “without her consent”. Section 90 spells out that consent given “under a misconception” is not consent in the eye of the law. Hence, a woman who indulges in sexual intercourse with a man on the promise of marriage argues that her consent was accorded under the “misconception” that the accused was going to marry her. As the marriage did not take place, for any of the several plausible reasons, the consent to sexual intercourse is to be considered null.
Courts have long grappled with the question of whether such consensual sexual relations between adults, often over a protracted period, ought to be deemed as “rape”. Several judgments have pronounced that such relations do not amount to rape, unless it can be conclusively proven that consent was sought by fraudulent means. Amid rising complaints of this nature, the Supreme Court, too, has ruled that the alleged “misconception” created to obtain a woman’s consent for sex has to be close to the incident and not stretched over years.
Relationship dynamics are further undergoing a quantum change with young men and women increasingly engaging in casual dating and short-term sexual liaisons via a growing array of social media apps designed for the very purpose. The legal challenge borne out of this trend is evident in the latest relief granted by the Delhi High Court just days ago, suspending the 10-year sentence of an appellant convicted by the trial court for obtaining the prosecutrix’s consent for sexual intercourse on a false promise of marriage. The appellant successfully argued that he had met the complainant on Tinder. While sexual liaisons via Tinder and similar apps are by no means a promise of marriage, in this case, there were also past blog posts of the prosecutrix stating that she did not believe in the institution of marriage.
The failure to understand the situation of a woman having sexual relations, of her own volition, on a future promise of marriage has subjected the law on rape to gross misuse. The problem begins when a relationship goes south. If the male partner is more invested in the relationship and feels let down by its breakdown, he has no choice but to live out his frustration and grief. However, to a woman in the same boat, the law offers a potent recourse. Given the seriousness accorded to Section 375, especially in recent years, a crime reported as rape must be registered immediately. The risk-averse tendency of the police in cases of sexual offences often leads to arrest and filing of chargesheets despite patchy evidence, leaving it to the courts to grant bail and, subsequently, to acquit the accused, if deemed innocent. Such overkill in cases of consensual relationships has led to the law being used as an instrument of arm-twisting, blackmail, extortion and disproportionate revenge. It causes immense harassment, including imprisonment, the financial burden of seeking bail and getting through long-winded trials, to men who had no criminal tendencies per se. It also results in an undue burdening of the criminal justice system. There is an urgent need to institute a system of detailed preliminary enquiry for such complaints before registering an FIR, as prescribed by the Lalita Kumari v/s State of UP judgment, for instance, to gauge the veracity of the allegations. This would help protect the genuine victims while curbing the abundant abuse of the law.
To link the legitimacy of sexual intercourse between consenting adults to their future marriage may have outlived its utility in the wake of the growing sexual liberation of young Indians. To sustain an interpretation of the law that seeks to protect unmarried adult women from being “hoodwinked” into sexual intercourse also appears patently paternalistic, as if they are incapable of assessing the significance of the act, and of understanding the risk that a relationship may not reach the intended fruition. A law that allows only women to revisit their past consensual sexual choices, and subsequently criminalises the same, is also paradoxical to women’s sexual liberation and empowerment, which comes with both the freedom and the responsibility to own up to their choices and desires.
The writer is an IPS officer. Views expressed are personal