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.)