Sex and rape: It's time the law is set down with clarity

Men of India be warned, if you have sex with a woman be prepared to marry her, else you risk being criminally prosecuted for rape. Last week, a Dutch national was arrested by the Bangalore police on rape charges.

He is accused of cheating a woman with false promises of marriage and inducing her to have sex with him. The couple met on social media in 2011, and physically consummated their relationship subsequently.The woman filed criminal charges in 2014 only when she found out that he could not marry her as he was already married. The son of a senior Union minister is also being investigated for similar charges, on almost similar facts. Criminal courts are seeing a spike in rape cases, in fact situations that would have normally been dealt with by the civil courts, as suits for damages for a breach of promise to marry.

Legally speaking, sex without consent of the parties amounts to rape. In cases of sex being induced by a promise of marriage, the argument for the prosecution, is  that there is no valid consent. The woman’s consent  to sex, was obtained  by a false promise of marriage, (that  the man knew, was false from the beginning). Vitiated consent being no consent, what started as consensual sex became rape with the disappearance of consent. In our overtly moralistic society, this argument has some semblance of merit, and there are even some  Supreme Court judgments that tend to favour such a position.

In 2002, in Uday v State of Karnataka, a two judge bench of the Supreme Court in dealing with such a situation in a criminal context, acquitted the accused of rape. It held “The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married.... If a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact.”

However, in 2004 in Dilip v State another two judge bench also acquitted the accused in a similar situation but while examining the question of consent in such cases, seized on the following line in Uday’s judgment “ … to fasten criminal liability on the other, unless the court can be assured that from the very inception the accused never really intended to marry her."  
So the law seems to be that a woman who is given a vague, non-deceitful promise of marriage, has sex but is not raped. But a man who from the beginning never intends marriage, but makes deceptive promises to obtain sex is a rapist. This position enunciated in Dilip’s case, makes the rape law unclear, dependent upon evidence not of fact and action, but is based upon evidence of the mental state of the accused and victim.

Fuzzy logic
 A woman may well consent, knowing that there are difficulties in the way of marriage, but still hopeful of a happy ending. The man may well have intended marriage at a later date if possible, but insuperable difficulties or irreconcilable differences, may have made him change his mind. The consequence of such fuzzy logic from the Supreme Court, has been to flood the criminal courts with rape cases of this sort, which seek to force into marriage, persons on the pain of imprisonment. 

There is also the anomalous situation that the man may claim that he still intends to marry the woman as and when a subsequent divorce, renders him  free to do so. Secondly, it is anomalous to have a criminal prosecution rendered infructuous, by the victim and the accused marrying each other.  Criminal courts are not intended to be marriage bureaus, or play the part of enforcers of pre-marriage vows. Private wrongs are set right by the civil process and wrongs against the state are prosecuted in the criminal courts. It is no one’s case, that pre-marital consensual sex, is a crime in the Indian republic.

It is time that the law is set down with clarity. In the absence of a clear drawing of lines, all sex outside the marital bed, is a potential act of rape. The Supreme Court should clarify the legal position by a judgment from a larger bench. In the absence of a judgment, Parliament would do well to consider whether any legislative clarification is needed. Consent relevant to rape law, is consent at the time of the sexual act. If there is consent before and during the act, subsequent discovery, that the consent was based on misconceived facts should not criminalise past transactions.

Promising marriage in return for sex and not living up to that promise, is morally wrong, totally selfish and reprehensible, but it is not rape. Prosecutors and judges, must desist from succumbing to populist clamour in these matters and ensure that genuine  victims of forcible rape, do not have their day in court, derailed by tawdry romances. The threat of imprisonment should not be used to railroad people into marriage. After all as John Mortimer pertinently pointed out, “Matrimony and murder both carry a mandatory life sentence”.