Rape laws and the standard of consent followed therein concern significant issues of transnational importance that have only gained more currency in the post #Metoo era. Many feminists have pointed out that the carceral impulse of developments in this era do little to change societal structures or even further victim justice. I interrogate India's jurisprudence on the breach of promise to marry in this light.
A recent judgment of the Odisha High Court in India was reported across national dailies with headlines reflecting its crucial observation that the breach of promise to marry does not amount to rape under the Indian Penal Code (IPC). The High Court noted that as per precedent, consent premised on a false promise to marry did not constitute valid consent for the purposes of the IPC but sought to challenge this understanding of consent. The Court granted bail to the appellant-accused noting visible contradictions of facts in the prosecution's version and observed that the case merited a full trial. I highlight some problematic observations made by the Court in arriving at this conclusion.
Section 375 of the IPC defines rape as penetration by a man upon a woman under seven circumstances, one of which includes committing the act without her consent. The two relevant provisions for examining consent under the IPC are Section 90, which defines consent generally and negatively and Section 375 which gives it a positive definition specific to the offence of rape. In cases of rape, both sections must be read together in a way that any conflict is resolved by allowing the latter specific provision to override the former as per settled rules of interpretation. Section 90 declares that consent can be vitiated if it is given by a person "under fear of injury, or a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception." Explanation 2 to Section 375 reads: "Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity." Pertinently, as per Explanation 2 to Section 375, consent is revocable and must be given for the specific sexual act involved. When read with Section 90, this means that it is possible for a woman to specifically consent to sex based on the man's promise to marry her. A misconception of fact when the promise is false from the very beginning, i.e. when the accused has no intention of marrying her at the time of penetration, vitiates this consent.
The survivor is the primary witness in a rape case and the Supreme Court of India has held that an accused can be convicted solely on the survivor's testimony if it is considered reliable. The prosecution shoulders the burden to prove beyond reasonable doubt that the act took place without the complainant's consent in a trial process that is typically hostile to the victim. Practically, it is almost impossible to prove the accused's fraudulent intention from the very start which is why most cases dealing with this issue predictably result in acquittals. This feeds into the rape myth that these cases evidence the misuse of criminal law by women. The Odisha HC noted in its judgment that these cases are on the rise and allow the law to become a "lethal weapon" that frustrated women unleash to exact "vengeance" upon their romantic partners when relationships turn sour. This is despite the fact that false accusations of rape by women are no more common than false accusations by men or women of crimes of other categories.
The Odisha High Court observed that the automatic extension of Section 90 to determine consent under Section 375 needs to be reconsidered. This arguably ignores women's violation of 'sexual autonomy' and 'sexual self-determination' if consent has been obtained by fear or misconception of fact. Classifying victims who are acutely aware of the absence of their consent when the rape occurs alongwith those who become aware of their non-consent subsequently if they discover that they were deceived into consenting based on a promise to marry that was false from the start does merit critical scrutiny. Definitions must accommodate the lived experiences of women over abstract generalisations and ambiguities that are likely to give greater credence to those who have the power to make their constructions prevail. In this light, the Odisha HC's conclusion that rape law should not regulate intimate relationships where women exercise agency can be considered progressive. This is because there is a limited feminist victory in experiencing defeats where female agency is at least acknowledged, albeit overplayed and often assumed to women's disadvantage in terms of outcomes. However, this should not be used to implicate the expressive agency of urban women to vilify them on one hand and infantilise their rural counterparts on the other. The Odisha HC lamented that these cases mostly arise in socially disadvantaged, poor and rural areas where women are 'lured into sex' and then dumped upon pregnancy. It is important that courts should use the social status of the victim and the accused to only highlight the possible power differential between them without essentialising rural women as innocent adherents of Indian culture against westernised, educated, 'mature' urban women who cannot be deceived.
These allegations can be located within a cultural context that strictly polices women's sexuality and begrudges the control they claim over their sexual choices. Pre-marital sex is regarded as taboo in India and there is a societal premium placed on women's "virginity" as the "most valued possession of a woman", sometimes courts have held it to be more valuable than life itself. This makes cases involving a breach of promise to marry tougher to report not just because they are extraordinarily difficult to prove but also because of the stigma that attaches to complainants. Sex where consent was based on a false promise to marry can cause great trauma due to shock, crippling self-doubt, violation of trust, and undermining of self-esteem. However, we must ask if the deployment of criminal law would do anything to alleviate this trauma or the societal expectations policing women's sexuality that make it particularly severe?
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Anupriya Dhonchak is reading law at National Law University, Delhi. Her paper titled, 'Standard of Consent in Rape Law in India' published by the Berkeley Journal of Gender, Law and Justice can be accessed here- https://www.law.berkeley.edu/library/ir/bglj/