Why Bombay High Court is right in saying sex on promise of marriage is not rape
The recent Bombay High Court judgement saying "sexual relations due to deep love" can't be termed rape, which the media has turned into an exploitative and cheap headline to grab eyeballs, is a reality a deeply thoughtful and responsible judgment.
In Delhi, a third - if not more - of all the rape cases filed in the trial courts are those relate to "sex on the promise of marriage". This fact was highlighted by Rukmini S in a report she filed for the The Hindu. Rukmini writes, "The Hindu found that one-fifth of the cases were wound up because the complainant did not appear or turned hostile. Of the cases fully tried, over 40 per cent dealt with consensual sex, usually involving the elopement of a young couple and the girl's parents subsequently charging the boy with rape. Another 25 per cent dealt with "breach of promise to marry".
She looked at 600 cases in the lower courts in 2013. Partners for Law in Development's much smaller (in terms of number of cases) but more detailed procedural study shows that such cases are rampant.
A "promise to marry" case is typically one in which a woman files a rape case against a man after their relationship has gone sour. The current case over which Bombay HC rules concerns a Goa-based couple.While activists for men rights might use this verdict to justify that most rape cases are false and even though women rights activists may feel that the court judgment is indeed flawed because sex on the promise of marriage is rape, the verdict shows us that the truth lies somewhere in between the two extreme stands. The lack of consensus over the verdict stems from the complicated sense of complicity of both the male and female psyches.
The case is particularly interesting because it is entangled with caste and the SC/ST Atrocities Act as the woman belongs to a scheduled caste community and the man has been charged with an atrocity case along with Section 376 for rape. The woman had slapped the atrocity case later and wanted to withdraw both the charges after finding out that the man was depressed and hospitalised.
The judgement recounts the details of their relationship without any of the sleaze that media headlines have added on their own. While the trial court trotted out the clichéd, politically correct narrative, in a crisp 20-page judgment, the high court overturned it.
While there is no doubt that the man was a jerk to the woman, this definitely wasn't a case of rape. It is important to maintain a distinction between rape and general jerkiness. Germaine Greer wants to do away with the word rape altogether and replace it with sexual assault. Her argument is that this will do away with the stigma around the word rape and likely result in more convictions. But this is not even a case of sexual assault.
It is just a case of pusillanimous behaviour from a spineless, young man.
Whether this behaviour is criminally liable is another matter. I think it is not. Not all jerks deserve to go to jail for being jerks. A bad relationship, like a bad date, does not need criminal law do deal with it. At most, it needs an apology, like the one Aziz Ansari offered, except a less mealy-mouthed one and both parties need to move on.
The fact that a sexual relationship turns into the promise to marry turns into rape says the obvious things about our sexually repressed and nightmarishly conservative society especially in terms of the the burden it puts on women but, more disturbingly, it shows the constitutive instability of heterosexual relations in India.
Pooja Satyogi's extraordinary anthropological work on women coming to complain at the women's cell in Delhi shows that complaints of physical violence or demands for money materialise out of thin air to make more emotional, layered and complicated sentiments legible as complaints to the law.
We have to learn to not take everything to the law. Women's panchayats are a great model to follow, recorded so beautifully in Deepa Dhanraj's documentary film Invoking Justice about a Muslim all-women's jamaat in Tamil Nadu. Why can't neighbourhood feminist collectives form panchayats? Why is criminal law the resort? Women's complaints about men are not often comprehensible for the law enforcement agencies and the law is compelled to see the situation as one-sided to incorporate them.
The truth is that human relationships are complex and that nobody is a pure victim in the violence of interpersonal relationships. In rape, yes. In human relationships, no. Men have no copyright on being jerks. Women can be equally manipulative, deceptive, lairs and hurtful. Indeed, they frequently are and the absurd degrees they might go, or might be coerced to go, are evident in a so-called promise to marry turning into rape.
Marriage, if you think about it, is a legitimate form of rape, especially when there is no marital rape law. How then is marriage any guarantee of safety from rape? Why are women so besotted with it? Because they are trained to desire marriage since birth and not figure out the need or logic of it themselves. Nevertheless, sex on the promise to marry is not rape or similar to rape. Getting married to someone might actually be.