Law and live-in relationships

A recent order of a single judge bench of the Allahabad High Court granting bail to a man accused of raping his live-in partner once again brings into sharp focus the effect of societal norms on judicial response to rape in live-in relationships. In this particular case, the offender was alleged to have raped his live-in partner with the promise to marry her and was charged under Section 376 of the Indian Penal Code.

The reasons given to justify granting bail to the accused, along with certain observations present in the order, raise troubling questions about the extent to which social norms regarding a woman’s bodily autonomy, freedom of choice, and the “destruction of the institution of marriage” have become entrenched not just in the “middle class” of society (as stated by the Court) but also within the higher judiciary.

Although marital rape is not presently a criminal offence under the Indian Penal Code, the fundamental nature of the crime—sexual intercourse without the wife’s consent—is applicable in the case of live-in relationships as well.

Consent is assumed to be given merely because the man and the woman are married (or in a live-in relationship). Another element in such cases is the false allegation of rape. Contrary to the dangerous ‘victimisation of men’ narrative that has gained newfound legitimacy, the empirical data to indicate that ‘false rape’ cases are filed by women is miniscule.

More importantly, why do women file false cases? Mostly because they fear the shame and ostracization that follow if they cannot marry their partner with whom they had premarital sex, a strong social taboo. In this case, an observation by the Court is telling: “This Court finds that this is another case where, after enjoying the live-in relationship, the young couple have parted ways. The girl, like in the majority of cases, has lodged an FIR in a vain bid to enter into a secure relationship of marriage with the applicant and come within the ambit of the socially accepted norms and relationship of marriage”. This implies that the woman’s allegation of rape is inherently frivolous because she
was in a consensual live-
in relationship.

The assumption being made is that the victim’s only motivation for filing a complaint alleging rape by promise to marry (a criminal offence under the law) is to enter into marriage and meet societal expectations. Such reasoning sets a dangerous judicial precedent and opens the door to the dismissal of genuine instances where a woman is raped by her live-in partner, irrespective of the promise to marry by her partner. It diminishes the inherently heinous nature of the crime of rape and dilutes the gravity of the (shamefully) frequent occurrence of rape, sexual abuse, and assault that women have to endure in India, both in live-in relationships and in marriage.

Finally, it would be remiss not to highlight the observations made in the bail order, reflecting deeply entrenched and patriarchal attitudes towards marriage as well as the broader narrative that is becoming increasingly popular. The order notes: “While it is not difficult to find another female live-in partner or wife for the male counterpart of a live-in relationship, it is very difficult for a female partner to find a male partner for marriage”.

This too reflects and strengthens the sexism that unpins our values: a woman who engages in premarital sex is slut shamed and considered “unsuitable” for marriage (according to the Court’s understanding of “Indian culture”), whereas a man bears no such judgement.

Another all-too-familiar observation is the criticism of Western media and culture, which supposedly promotes infidelity and is detrimental to the institution of marriage. What the judgement upholds instead is “middle-class morality.”

Notwithstanding the broad generalisation and leaps in logic, this observation reflects the insecurity of the powers that be, within and outside the judiciary. Do we fear that liberal and progressive ideas will replace the patriarchal, discriminatory, and paternalistic norms that we mistakenly call “Indian culture”?

As a student of law and a young citizen, I hope that our courts will guide us—the men of the country—towards redefining the parameters of our intimate relationships and redeeming their honour.

(The writer is a student at NLSIU, Bengaluru)