'Presumption That Woman Engages In Intimacy Only To Marry Is Patriarchal': Orissa HC Questions Criminalising Sex On False Promise Of Marriage

The Orissa High Court has questioned the underlying presumption behind criminalisation of sex on 'false promise of marriage' and held that the assumption that a woman engages in acts of intimacy with a man only as a 'prelude' to marriage is a patriarchal thought and not a principle of justice. In a powerful observation against putting fetters on female sexuality and bodily autonomy, the Single Bench of Dr. Justice Sanjeeb Kumar Panigrahi noted – “In its pursuit of justice, the law must not become an instrument of moral policing. It must acknowledge that sexual agency is not a promise, nor is it a contract that mandates a predetermined outcome. To assume otherwise is to deny women the full measure of their autonomy, desire, and choice, reducing them to mere bearers of honour, rather than as individuals possessing an intrinsic right to their own bodies and decisions.” The Court was in seisin over a petition filed under Section 482 of the CrPC to quash the pending criminal proceedings against the petitioner under Sections 376(2)(a), 376(2)(i), 376(2)(n), 294, 506 and 34 of the IPC for allegedly having sexual intercourse with a woman/prosecutrix, for a period spanning over nine years, on the false promise of marriage. Court's Observations The Court stressed that there is an urgent need to disentangle the constructs of sex and marriage, both in the legal system and in the social consciousness. It flagged the concept of sexual autonomy, i.e. a woman's right to make independent decisions about her body, sexuality, and relationships. Justice Panigrahi observed that in a patriarchal society, the institution of marriage has been reduced to a mere 'performative act', fuelling the belief that female sexuality must be bound to male commitment. However, he clarified, it (marriage) is a legal and deliberate compact between two individuals who choose to build future together under the sanction of law. “It is not the inexorable destination of passion, nor the predetermined consequence of intimacy. To conflate the two is to imprison human relationships within archaic expectations, to deny individuals, especially women, their right to autonomy, to choice, to the pursuit of desire unshackled by social decree,” he added. The Judge cited the seminal work of Simone de Beauvoir, a French philosopher in 'The Second Sex' which questioned the 'insidious' notion that a woman's sexual acts are valid only when tied to marriage. Taking succour from the aforesaid philosophy, Justice Panigrahi said – “Marriage is a choice, not inevitability. It is a legal recognition, not a moral recompense for physical union. It is an agreement, not atonement. To treat it otherwise is to strip individuals of their right to define their relationships on their own terms, to reduce love to a binding transaction, and to transform desire into a liability.” The Court further urged that the law must resist this 'fiction of destiny', i.e. the presumption of law that a woman engages in intimate overtures only with an intent to marriage. “It is this fiction of destiny that the law must resist. The presumption that a woman engages in intimacy only as a prelude to marriage, that her consent to one act is but a silent pledge to another, is a vestige of patriarchal thought, not a principle of justice. The law cannot lend itself to such a perversion of choice, where failed relationships become grounds for legal redress, and disappointment is cloaked in the language of deception,” it observed. The Single Judge questioned the existing legal system which criminalizes sex on false promise of marriage as the very criminalization is premised on the assumption that women engage in sexual relationships only to culminate the same in marriage, rather than being 'autonomous agents' of their own desires who engage in sex out of desire and not out of prospect of marriage. “It is in this light that the automatic criminalization of failed relationships under the guise of “false promise of marriage” must be scrutinized. The assumption that every physical relationship between a man and a woman carries the implicit condition of matrimony is not a principle of law but a vestige of control. It is a proposition that denies women the very agency the law purports to protect,” he said. However, the Court acknowledged societal realities of the country where women are often brought up in conservatism and the fact that for those women, consent may not always be an act of volition, rather a submission to circumstance. “The law must be a shield, not a shackle. It must recognize that sexual autonomy is a right, not a bargain, and that the exercise of this right is not a betrayal of virtue, not an invitation for legal persecution. If the law is to serve justice, it must evolve, not in deference to tradition, but in allegiance to the fundamental truth that a woman's body, her choices, and her ...

'Presumption That Woman Engages In Intimacy Only To Marry Is Patriarchal': Orissa HC Questions Criminalising Sex On False Promise Of Marriage

Jyoti Prakash Dutta

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