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Why Delhi HC Ruling On ‘Promise Of Marriage Not Amounting To Rape’ Is Problematic

Posted: December 21, 2020
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Delhi HC’s judgement about sex on the promise of marriage not amounting to rape ignores the societal pressures of marriage a woman faces!

“Aurat ki izzat par agar ek baar daag lag jaye, toh woh kabhi nahi dhul sakta” (If a woman’s character is ‘stained,’ it cannot be ‘cleaned,’ no matter what)

Does the above dialogue ring a bell? For all the Bollywood enthusiasts, the ‘daag wali chunri’ should be all too familiar to you. And for those wondering what is this ‘daag (stain)’ is all about, well, it’s the woman choosing to have sex outside or rather, before marriage.

A recent judgement by the Delhi High court has triggered a similar argument about a woman and her sexuality outside marriage. This case refers to a petition filed by a woman who was in a relationship with a man from 2008 to 2015.

During the course of their relationship, the man promised to marry the woman and the couple had a physical relationship on several occasions. However, eventually, the man did not honour his promise and married someone else.  

As a woman in India, you are aware of the hostility reserved for a woman who chooses to define and control her sexuality and her body. In such a society, marriage is placed as the penultimate goal for most youngsters. This acts as a license for indulging in physical relations, especially for women who constantly fear the ‘daag.’

In such a scenario, the raging debate for quite a few years has been “does sex on the promise of marriage amount to rape.” And the current case just triggers the debate further. 

We have seen this happen multiple times in the past

Honourable Justice Vijay Bakhru, in the case delivered that the accused cannot be held guilty of rape as there is a “continuing intimate relationship, which also involves engaging in sexual activity over a significant period of time,” the same can’t be seen as “involuntary and secured not by affection but only on the lure of marriage.”

The court considered it significant that the survivor had consensual sexual relations with the accused for the first time, a few months before he promised her marriage. This is not the first time that a judgement was delivered by an Indian court that declares that establishing a sexual relationship with the promise of marriage does not amount to rape.

On May 21 2020, Orrisa High Court in the case of G. Achyut Kumar v. State of Odisha held that “observed that if the person engages in sex on a false promise of marriage then it does not constitutes rape though at the same time the conduct of the accused may not be approved socially.” 

As the court rightly points out, it is the social approval which plays a major role in such cases. It is the social approval attached to marriage which induces the woman involved to agree to a physical relationship. Thus, can such consent actually be considered to be given with free-will?

This was also pointed out by the Supreme Court of India in 2019 when a doctor in Chhattisgarh was convicted for rape as he had a consensual sexual relationship with a woman after he’d promised to marry her. However, he then went back on his word and married someone else. In this case, the Apex court held that “the accused had a ‘clear intention’ not to marry her,” and that ‘sexual intercourse under total misconception cannot be treated as consent.’

The cases that oppose the 2019 Supreme Court judgement seem to shift the entire blame on the woman. In the Delhi HC case, the woman’s consent given once was considered as a free-will consent, which may not have been true. The future instances of physical intimacy may have been consented only because she was promised marriage.

Would this judgement have been different had there been no prior instances of physical intimacy between the couple? This is definitely something we should ponder while considering the social conditioning of our country.

The Delhi High Court judgement has been lauded by many, most claiming this would put an end to women taking advantage of the legal framework and terming an act of consensual sex as rape. But the issue is not as simple as it appears.

In a country where a woman’s sexual agency in itself is frowned upon and pre-marital sex is akin to blasphemy, the importance attached to virginity only adds to the woes. When the society is keen on categorising a woman as pure and impure, with the men vying for only virgin brides (even if they do not have a supposedly ‘pure’ past), should the woman alone be blamed for taking the legal recourse in such cases?

A woman faces scrutiny shaming and backlash from the society for a simple act of deciding for herself and exercising agency over her desires. Meanwhile, the male partner is rarely blamed. There is no purity quotient for a man, neither is he measured on a moral compass for his past relationships, why so? Does it not take two to tango?

Picture credits: Photo by Qazi Ikram Ul Haq from Pexels

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