When Sex is not Rape

9 Dec

In October this year, an additional sessions judge in Delhi pronounced a controversial judgment in a rape case involving sexual intercourse between a man and a woman after they informally performed certain marriage-related ceremonies without getting legally married. This post reflects upon the judgment and highlights certain ironies that flow out from the ideology behind this judgment as well as the Indian law that allows marital rape.

In this case, the accused man had applied vermillion over the 24-year-old woman’s forehead and declared themselves as married, after which she consented to sexual intercourse with him. They also went to Jammu for court marriage but the marriage had not been solemnized yet. The judge held that she was a mature woman who should have known that mere performance of certain ceremonies does not suffice to constitute a valid marriage. He also expressed his disturbance at the trend of complaint of rape on false assurance of marriage by girls who consensually engage in sexual intercourse after the performance of some marriage-related ceremonies. The judge remarked that these are mature women who voluntarily elope with their lovers for bodily pleasure and fabricate the story of kidnap and rape to escape harsh treatment from their parents. It is difficult to believe that such women, even if they may belong to rural areas, do not understand what constitutes a valid marriage and are misled by performance of some rites and ceremonies by men. Such complaints trivialize the offence of rape. He also remarked that “girls are morally and socially bound not to indulge in sexual intercourse before a proper marriage and if they do so, it would be to their peril and they cannot be heard to cry later on that it was rape.”

While many have criticized this judgment, comments posted below the online news report show that the judgment has also been hailed as correct by many people.

Both the Indian Supreme Court (see Deepak Gulati v. State of Haryana, 20 May 2013) and the Delhi High Court (see Abhishek Jain v. State,7 June 2013) have held that sexual intercourse on false promise of marriage amounts to rape. This case involves not merely a promise to marry, but overt acts clearly indicating the intention of the man to marry the woman. It of course needs to be established that the woman’s consent was obtained on the false promise of marriage and there were no subsequent events as a result of which the marriage did not take place, although the intention to marry was present. The judge and the comments that accuse the woman of misusing the law need to worry about the meaning of free consent. This is not a case where a woman forced a man to marry her after she realized the moral consequences of having sexual intercourse without marriage, and then filed a complaint of rape when he refused marriage. If this was such a case, then why did the man perform the drama of putting vermillion and going to court for court marriage? After declaring them as married, why did he later refuse to accept the woman as his wife? Even though performance of some ceremonies does not constitute a legal marriage, such conduct does indicate expression of intention to marry. And if this promise of marriage was falsely made with the sole intention of having sexual intercourse, the conduct does amount to rape as per Indian law.

This judgment reflects the attitude of a society that blames women for rape, even where the man knowingly commits fraud. The judgment also reflects the tendency to understand rape only as ‘stranger rape’, where an unknown man forcefully assaults a woman who tried to physically resist him but was overcome. A number of reports indicate that most rapes are committed by known men. There is a need to understand the notions of passive submission and wrongfully obtained (even if not physically forcefully obtained) consent.

There are two further ironies that flow from this judgment.

First, the judgment recognises the agency of women where it was missing, but undermines agency where it should have been recognized. Recent developments in feminism have asked for the recognition of agency or autonomy of women and have argued against treating women as passive victims of male domination. In this judgment, by claiming that the woman is mature enough to understand the meaning of marriage the judge recognises the agency of a woman and refrains from treating her as a helpless victim of male domination. At the same time, the judgment preaches women not to have sex before marriage, thus denying them sexual autonomy. Thus, the judgment seems to be giving agency to women for the purpose of depriving a legally available benefit, but not actually providing liberty or any benefit. This is not how the agency discourse should work—viewing agency where there was probably none or very limited, and denying it where it is required to enhance individual liberty.

Second, the judgment, coupled with the Indian law that continues to condone marital rape, leaves women in an awkward position legally. In this case, the woman filed a rape complaint after the man refused to recognize her as his wife. Thus, where sexual intercourse takes place after performance of some informal ceremonies, the judge put the blame on the woman, holding her responsible for her actions, stating that she should know what a valid marriage is, and admonishing her for making false allegations of rape against the man. However, in case a woman is able to prove that the man did in fact marry her by performing these ceremonies, the man then becomes legally absolved from all allegations of rape, since marital rape is not considered a crime. This makes the promise or actual performance of marriage irrelevant, leaving the woman in both cases without any remedy.

In times where we are trying to establish the law on conduct such as sexual harassment and provide legal space to nuanced concepts like ‘a hostile work environment’, it is deplorable that we haven’t even got the basics of a patently grave crime like rape right.

2 Responses to “When Sex is not Rape”

  1. balaji December 9, 2013 at 2:43 pm #

    The judgement itself seems to be correct, though. Among other points, the judge has also disbelieved the prosecutrix as she falsely deposed about a prior instance of rape, and disbelieved the prosecution case overall as the girl’s parents admitted that they were aware that the girl and the accused were together for a week, approached the boy’s parents with a marriage proposal, and only went to the police after this was rejected. In these circumstances, it would be difficult to conclude that this was a case where “promise of marriage was falsely made with the sole intention of having sexual intercourse”.

    • raadhikagupta December 10, 2013 at 12:04 pm #

      It depends on the complete facts. If there was clear intention to marry which later changed due to some other factors, it should not be seen as rape. Besides, if the sexual intercourse took place consensually between the two, not contingent on any promise of marriage, then irrespective of whether the marriage takes place or not, it should again not be considered rape. But if the promise was falsely made for the purpose of having sexual intercourse, without their being any intention to get married, and that is why the proposal was rejected, then it is problematic. But of course after looking at the complete facts, the final decision itself could be correct, minus the moral preaching by the judge.

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