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Sex On The Pretext Of Marriage Is Not Always Rape, Rules Delhi HC. It’s A Grey Area

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We are aware that sexual crimes against women are way too frequent in India. According to the statistics (2019), a rape is reported every 16 minutes in India. And then there are other incidences of sexual assault and groping which are so common, women in India don’t even think of filing an FIR for it. Speaking of which, imagine, how many go unreported. Imagine, how many people aren’t even sure if they were raped. And this happens mainly in intimate relationships, especially when sex is done on the pretext of marriage.

Even if you are in a relationship/marriage with someone, it doesn’t give them your lifelong consent to do whatever they want, right? In fact, consent acquired under conditions – say to use a condom or to get married – can amount to rape if those conditions were intentionally not fulfilled. Well, as long as you can establish that the intention was mala fide. Of course, it makes the struggle even tougher for women to prove such an abstract concept.

While hearing a case, the Delhi HC observed, “A promise of marriage cannot be held as an inducement for engaging in sex over a protracted and indefinite period of time.” The court said, “In certain cases, a promise of marriage may induce a party to agree to establish sexual relations, even though the party does not desire to consent to the same. Such inducements in a given moment may elicit consent, even though the concerned party may want to say no.”

“The HC stated that in cases of false promise to marry, the other party may “vitiate consent and, thus, constitute an offence of rape under Indian Penal Code section 375”. The court stated that in cases that involve intimacy over a prolonged period of time, the same cannot be seen as rape,” reported Times Now.

This observation was made in relation to a case in which the woman had a physical relationship with a man before the promise of marriage was made. However, later she alleged that he had sex with her on the pretext of marriage. The court acquitted the man.

While that makes sense to me, I don’t understand what time has to do with consent. If a man has sex on the pretext of marriage, he can easily manipulate the woman saying he will marry her after a year, once he settles or any such crap. They may have sex several times and later he may walk out not being tried for rape because it was over a “prolonged” period. Rape by the means of emotional manipulation can happen over a prolonged period of time.

The fate of a case really lies in the hands of the court. There are cases in which the accused has been convicted of rape and those in which he got acquitted. Our legislature does have provisions for consent acquired under fraudulent circumstances to account to rape. But the question remains: Was the promise intended to be not kept or that it couldn’t be kept due to circumstances?

Of course, there have been Justices who in their observation have made sexist comments while at it, calling the women “promiscuous” and saying things like you cannot “pardon the act” of the girl by blaming the guy. The views of several courts too are tainted with misogyny so when you have to “establish” what the intent of the man was, he already has an upper hand – whether he committed a crime or not. Having said that, it must be taken care that an innocent man doesn’t get punished because he couldn’t marry the woman he had sex with, due to genuine circumstances.

“The stand taken by the Supreme Court is that if the intention of the accused is malafide and he has clandestine motives, then he accused should be convicted of rape. If this is not done then, it will enable immoral and dishonest persons, including those who come to this country for such very purposes, to exploit girls belonging to weaker sections and lower strata of society by alluring them with false promise of marriage pressuring them to have physical relations with them by making them believe that they are going to marry them and that there was nothing wrong in having such relations with a person who is very soon going to be her husband and later on turn; their back at her, in a comfortable belief that the law being on their side, they can easily get away with their misdeeds,” Legaleraonline writes.

ALSO READ:Maharashtra Government To Pass The Disha Bill In The Next Session. Why Did We Need Another Rape Before They Take Action?

All said and done, I’d like to point out that attaching a woman’s worth and sanctity to her body is terribly wrong. In April 2019, SC observed that sex on the pretext of marriage is rape. That’s good if the accused was convicted for his bad intentions but the statements made really bother me. “It tantamounts to a serious blow to the supreme honor of a woman and offends both her esteem and dignity,” said the bench. I mean, this mindset is dangerous. It’s the reason women are seen as promiscuous if they have sex. It may seem like one tiny thing but it greatly influences and furthers the mindset of our society that reduces women to our bodies. Read more about such cases here.

ALSO READ:“Helpless Resignation” Is Not Consent, Said Kerala High Court In A Rape Case. Finally, Some Hope.

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