Understanding ‘Rape On Promise Of Marriage’: The Reliance On Caste, Gender Stereotypes
Feminists have critiqued the use of criminal law in ‘rape on the promise of marriage’ but the issue of intersectionalities cannot be ignored
New Delhi: On March 29, 2023, the Bombay High Court passed a judgement wherein a victim alleged that the accused had forcible intercourse with her on multiple occasions during an eight-year-old relationship. She alleged that she permitted the physical relationship on a promise of marriage. Later, the accused refused to marry and sent her obscene messages. The charge was framed for rape (section 376, IPC), causing hurt (section 323, IPC), and sending obscene messages online (section 67, IT Act).
The court discharged the accused, holding that his promise of marriage was not the only reason why the prosecutrix permitted the accused’s ‘sexual indulgences’ (in the court’s words). The court noted that she was also in ‘love with him’. Thus, the court held that the accused cannot be blamed only because the relationship did not go well and for whatever reason did not ultimately culminate into a marriage.
Media reports on the case headlined ‘Relationship turning sour does not mean the sex was non-consensual’ hide more than they tell. In this piece, we attempt to understand this confusing phenomenon of ‘rape on the promise of marriage’ and understand the reliance of courts on caste and gender stereotypes in understanding it.
The Legal Position
Section 375 of the Indian Penal Code defines the offence of rape and makes sex without consent a punishable offense. While the section itself does not create a category of ‘rape on the promise of marriage’, court judgments have interpreted this category based on Section 90 of the IPC. Section 90 states that consent is not such if it is given by a person under 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. (This use of section 90 has been questioned by legal scholars since consent has already been defined under Explanation 2 of section 375 itself).
This categorisation was first created in the case of Uday v. State of Karnataka. In this case, the victim, a woman from the OBC caste, alleged that the accused had raped, and impregnated her. She alleged that the accused then promised to marry her but later abandoned her. The Division Bench of the Supreme Court acquitted the accused holding that there is no evidence to indicate that he did not intend to marry her. The court held that since both parties belonged to ‘different castes’, the victim was ‘clearly conscious’ that their relationship would meet ‘stiff opposition’.
Based on these ‘caste considerations’, the court held that it cannot be said that the victim permitted physical relationship only on the assurance of marriage. Instead, the court declared that it was out of ‘love’ and ‘passion’ that she went to meet him at a lonely place at 12 in the night. The accused was a Brahmin.
While the category itself remains hard to define, legal scholars Nikita Sonavane and Neetika Vishwanath have identified two patterns in these cases: first, where rape is committed, and subsequently victim is attempted to be silenced through the promise of marriage, and second, where the promise is made to convince the victim for a sexual relationship. Rukmini S in her study of all the sexual assault cases in Delhi District Courts in 2013 (nearly 600 cases) found that around 25% were under the category of ‘rape on the promise of marriage’. Similar results have been found in Lucknow, Mumbai, and Chhattisgarh. This warrants further scrutiny in terms of data.
Reliance on caste stereotypes
The Uday judgement has been followed religiously as a standard precedent in multiple cases (examples here, here, here, here, here, and here). Based on the Uday judgement, courts have drawn a distinction between a ‘false promise’ where the accused from the very beginning did not intend to fulfil the promise and marry, and ‘a breach of promise’ where the promise of marriage was made in good faith but was subsequently not fulfilled. In the latter category, where the accused intended to marry but could not, the accused is not liable.
And here lies the source of trouble. This distinction based on intention is hard to establish and thus court’s consideration of ‘justifiable reasons’ for failure to fulfil the promise of marriage is invariably based on ‘existent social stratifications’. For instance, courts have shown a consistent acceptance of caste as a determining factor in deciding whether the accused had an honest intention of marriage or not. Uday, for instance, considered a woman’s Bahujan caste status as a sufficient reason for the refusal to marry. Legal scholar Nitika Sonavane points out that Uday ‘endorsed endogamy’ and sent a message that women who fail to ‘adhere to caste hierarchies ought to pay price for it’.
There are multiple such instances. In yet another often-cited case, Pramod Suryabhan Pawar v. State of Maharashtra, the court held that the victim, a Scheduled Caste person, continued to engage in sexual relations with the accused though she was aware that there were ‘obstacles’ to their marriage. In this case, the accused had refused to marry on the ground that their marriage would ‘hinder his younger sister’s marriage’ and had made deeply casteist comments against her, calling her and her caste, ‘dirty’, ‘bad for society’ among other things. Similarly, in yet another case where the victim was a Scheduled Caste person, a single bench of the Supreme Court took notice of the difference in caste and religion of the parties and held that the marriage could not materialise for ‘societal reasons’. The accused in this case was not held guilty.
The pattern has also been reproduced at the District Courts, as research shows.
This shows that courts consider casteist stereotypes as sufficient reasons for a man’s refusal to marry. Thus, in the Uday and Pawar case, instead of recognising the injury caused by underlined casteist violence and caste-based discrimination, the court seems to uphold the institution of caste. In both cases, the court operated with a casteist logic that the woman was of a lower caste and thus, she should have been more cautious. This amounts to victim blaming, not judicial reasoning.
Other Sexist Stereotypes
Apart from caste, courts have also relied on multiple other sexist stereotypes.
In a criminal appeal against the order of conviction under section 376 IPC for rape on the false promise of marriage, the Kerala High Court in 2017 acquitted the accused on the ground that it is ‘quite unbelievable’ that ‘a well-educated lady having a degree in Engineering’ could be deceived. The court instead shamed her and noted that the act happened “with her full consent, as part of her ‘illicit’ and unholy union with him”. This relies on the stereotype type that ‘educated women’ are ‘bold women’ and thus cannot be easily raped.
In Umesh Lilani v. State of MP, the Madhya Pradesh High Court quashed an FIR against an accused on the ground that the victim was a 35-year-old divorcee who cannot be said to be not aware of the ‘ways of life’. In this case, since the accused was an already married man, the court held that the victim knew of the ‘immorality of the acts she had consented to’. Similarly again, a single bench of the Delhi High Court took note of the age and previous failed marriage and noted that: “If a fully grown-up lady consents to the act of sexual intercourse on a promise to marry and continues to indulge in such activity for long, it is an act of promiscuity on her part and not an act induced by misconception of fact.”
Courts thus have put an additional burden on women that they should only enter into socially acceptable relationships. In one case the court literally asked a victim: “Where was the compulsion for her to establish physical relations first without ensuring that the appellant and his family members were willing to perform marriage with her?”
Courts have also taken note of the length of the relationship, the victim’s acquaintance with the accused, and the time of her visit to the accused’s place as considerations in determining the cases. To establish the dishonest intention of the accused from the very beginning, courts have also suggested that the promise of marriage alone should be the reason for the victim’s permission to engage in sex. Thus, for instance, the Madhya Pradesh High Court in one case held that the victim was ‘deeply in love’ with the accused and noted that:
“…when two young persons are madly in love, that they promise to each other several times that come what may, they will get married.. …..the promise loses all significance, particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship”.
This was again a case of ‘caste considerations’ (in the words of the court), where the court held that the accused cannot be held guilty since the victim knew that there was a ‘distinct possibility’ of a marriage not happening.
Similar stereotypes have been followed in multiple cases such as this. Legal scholar Arushi Garg in her analysis of 79 judgements of Delhi Trial courts between January-June 2014 and 2016 found similar reliance on sexist stereotyping in such cases. (Readers may recall that we have previously discussed the frequent re-victimisation of victims in rape trials).
Need to acknowledge harm
Within feminist discourse, the use of criminal law in rape on the promise of marriage cases has been seriously critiqued.
These critiques centre around women’s autonomy and agency. Srimati Basu, for instance, reads the Uday case as an instance of ‘ascription of sexual agency’ (although to the victim’s disadvantage). Nivedita Menon similarly argues that the category of rape on the promise of marriage is based on the presumption that good women ‘consent to sex only on the promise of marriage’. Related to the agency critique is another critique that the category of rape on the promise of marriage ‘reinforces a particular construction of marriage, as a conservative, patriarchal, heteronormative, intercaste, intercommunal institution’. Thus, this critique argues that judicial imagination cannot fathom that love can happen outside these categories of caste, religion, etc.
However, the focus on love and agency fails to recognise the dignitarian harm caused particularly in the intersectional case of Bahujan women. In all of the cases where the victim was from Dalit, Bahujan backgrounds, the accused indulged in caste-based humiliation, called them deeply damaging names and then abandoned them. Thus, we need to acknowledge, as Sonavane points out, that these are not merely cases of ‘love’ but are equally cases of harm and abuse.
Further, merely terming it ‘love’ (and consequently ‘love gone wrong’) also strengthens the ‘misuse’ narrative furthered by ‘men’s rights groups’. Even after the recent Bombay High Court judgement, there were multiple tweets by ‘men’s rights activists’ cheering the court for ‘curbing the misuse’ of the law. Misuse narrative is also likely to make registration of cases difficult, thus further marginalising victims. Notably, these misuse assertions are often mostly seen against laws protecting marginalised communities (women, Dalits, Bahujans).
Perhaps, we should have a conversation about acknowledging harm without necessarily relying on criminal law. Sonavane, for instance, suggests a non-criminal response through civil damages. In Dilip v. State of Bihar, the court acknowledged the trauma of the victim and held that irrespective of his acquittal, the accused is liable for breach of promise and is liable to pay civil damages. Further research is required to be undertaken on how far this aspect of the case has been followed in subsequent cases. (Recently, the Orissa High Court in a case attempted to question the automatic extension of criminal law in these cases, but with some deeply damaging sexist observations.)
The Indian feminist movement, much like its US counterpart, has often relied excessively on criminal laws without acknowledging either its intersectional limits or the disproportionate harm caused to marginalised communities through criminal law. The category of rape on the promise of marriage raises these fundamental questions and deserves our attention.
(This is an explainer based on the scholarship of Nikita Sonavane, Arushi Garg, and Neetika Vishwanath. The author is thankful to each of them for their scholarship.)
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