Rape laws: A call for change10 min read . Updated: 18 Mar 2017, 11:41 PM IST
A young woman filed a complaint against her partner that was recorded as a claim of rape. Now, she's gone to court to change how the rape law is applied.
Last December, during a hearing, a young woman approached two judges at the bench in the Bombay high court. Yes, she told them, she had lodged a case of rape against her former partner. But no, she said, she didn’t wish to pursue it further.
The bench was hearing a petition filed by the woman—let’s call her X—seeking to quash her earlier rape complaint. The two adults had been in a consensual relationship, and the man had promised to marry her.
In India, consensual sex between unmarried people in which the man promises marriage, but thereafter doesn’t go through with it, is usually treated by the police as cheating and rape.
In such situations, women often go to the police to seek redressal. The men go to the courts to get bail.
In her case, X discovered that her partner was already married. Angered, she went to the police. After a change of heart, she tried to close the case with the police, but when that failed, she came to court. In that December hearing, the court stepped in and quashed her complaint.
But that wasn’t enough. X had had a brush with a system she couldn’t entirely comprehend. She had come to terms with her life falling into disarray, and she had watched a man she once loved turned into someone accused of a crime.
A few weeks after she successfully got the FIR quashed, the 20-year-old went to court again. This time, she went with her former partner—the former accused—as a co-petitioner.
Now, together, they are seeking guidelines to be drawn for the police in situations like their own. In short, they’ve asked that Section 376 of the Indian Penal Code—which deals with the punishment for rape—not be applied when a couple has been in a consensual relationship for a while. They have further sought that only after proper investigation should the section be recorded, and that arrests not be made in haste.
At a hearing in February, the court had asked them to convert their writ petition into a public interest litigation, or PIL.
The law and its complications
So why would a woman who has used this particular law now seek to change its application?
“It is better if someone who is innocent is not dragged into something they don’t deserve," she says. “Many people get destroyed by such things. Even though I lodged a case like this, I wouldn’t want anyone to suffer. Only after filing the complaint do you realize, ‘What have I done?’"
In India, the penal code itself doesn’t spell out that a breach of promise to marry constitutes rape, but states that consent obtained by misrepresenting facts cannot count as consent. Because this can be interpreted as vitiated consent, the rape section can be applied. Considering that “honour" still has currency in India, women in relationships who do not marry might be looked at askance. “In our social context, marriage is important for any physical relationship," says Jayna Kothari, executive director of the Centre for Law and Policy Research.
Data on this is sketchy, but a Maharashtra CID report in 2013 suggested such cases had increased by 16% over a one-year period and formed the bulk of rape cases. Courts across the country routinely hear cases in which a man and woman have sex following the man’s promise of marriage. But it is hard to say precisely how many are convicted, because there is little comprehensive record-keeping.
Courts tend to deal with such situations differently, but given anecdotal accounts and the fact that the overall conviction rate for rape is below 30%, it is likely most such cases end in acquittal.
One study by Majlis Legal Centre, a forum on women’s rights and legal initiatives, analysed 644 FIRs of rape/sexual assault recorded by Mumbai police between 2008 and 2012 and found that 20% of cases recorded against “known persons" involved a breach of promise of marriage. (75% of women were between 11 and 25 years of age, and a quarter were pregnant. The Majlis study covered different age groups.)
Consent before 18 doesn’t count and such cases are often filed as rape—at the urging of the parents—but also tend to end in acquittal. The Hindu’s study of Delhi trial court judgements likewise found that 109 of 460 fully argued cases were of the breach of promise to marry kind, and 12 ended in convictions.
Since 2013, more such cases have been getting recorded, says Mrinal Satish, an associate professor at the National Law University in Delhi whose book Discretion, Discrimination and the Rule of Law on rape sentencing came out last year. He attributed this to the change in the law in 2013, with Section 166A brought in to prosecute police officers who failed to file rape cases.
“For the police, these are easy cases," he says. “As the police, you don’t need to do any further investigation because there is already an admission of intercourse."
The rise in such cases has prompted outcries about “false" rape cases and a misuse of the law. But reality is always messier than the hype surrounding it. X’s case and her decisions show how such scenarios might unfold.
A relationship that soured
In January 2015, X met her partner—let’s call him Y—through common friends in Goa. They continued to meet when they returned to Mumbai, and a couple of months later, moved in together. He promised to marry X.
The relationship lasted for nearly a year, and seemed to be getting serious. X decided to call up Y’s mother one day in December 2015 and speak to her. But the woman who picked up the phone was not his mother—she was his wife.
“Is this really happening, I wondered?" X says now. “I was pretty shocked."
She went to his house to confirm what she had heard. “I was furious and felt I had been used," she says. “I felt I should stand up for myself."
Two days later, X lodged a complaint, telling the police what had happened with her. “I didn’t know much regarding the consequences," she says. “I felt shattered. If I knew the reality, I wouldn’t have been in such a serious relationship."
A sense of hurt led her to the police, but here, she claims, she swiftly lost control over what was going on, and what complaint was being recorded, since she did not speak Marathi, the language of the FIR. She had had no previous experience with the legal system. She thought, perhaps, he’d be booked for fraud or cheating.
In the meantime, she had already moved back to her place. The police lodged an FIR under sections of rape and "unnatural sex".
But only after he was arrested and the charge-sheet filed did she understand what was going on. “Then I realized how crazy the situation is," she continues. “I thought, ‘I am not ready for this.’"
X then wrote to the investigating officer and senior police officers, trying to take her complaint back. When that didn’t work, she went to court, effectively asking the judges to undo the saga she had set in motion. She later filed the PIL.
Mahesh Vaswani, the lawyer representing her in the PIL, says continuing relations over a period of time could not qualify as rape. “When a woman has consensual relations and continues to do so with a man, then how can it be rape?" he asks. “That was not the original intention of the law." Such cases are “ruining lives", he says.
There is also the implicit assumption in the law’s application that consent is embedded in marriage, undermining feminist efforts to free one from the other.
“I am troubled by cases where we assume sex is only under the condition of marriage, and the politics of respectability involved," says Srimati Basu, professor of gender and women’s studies at the University of Kentucky, who has written on such cases.
“[That] the only way a woman would apparently assent to sex would be if marriage was on offer, suggests a notion of consent in a patriarchal set-up where women’s sexuality is located in marriage," she says.
But more than the law, this is about its application. “This is about police practice," says Satish. “More police training is required, especially in dealing with cases where there was clearly no deception or conditional consent. Women go to the police looking for a legal remedy and are told this falls under the rape law."
Understanding the law
This is what appears to have happened with X. “Yes, I was bitter and wanted to file a case, but did not think it would end up being sections like 376 (the punishment for rape) and 377 (dealing with "unnatural sex")," she says. “When I finally understood the situation, I wondered, what are the consequences? This man has children, he has a family. This is not what I wanted for him or for myself."
The two are no longer in touch and not in a relationship (though Y said he wants to marry her). “Why would I want to ruin a family?" she asks. “You can’t really mess with that."
They just happen to have filed this petition together—joining hands purely to correct a perceived wrong. Some lawyers however, have been circumspect about the woman’s motivation in filing the PIL and what purpose it serves.
“This is just a small proportion of cases," says Kothari. “We need not be overly worried."
Courts have previously drawn a distinction between a promise of marriage that could not be fulfilled and a promise that was false from the outset. But that may not be clear when a woman first approaches the police, especially if they are obliged to record complaints. In any case, proving intent is difficult.
X only hopes discretion is more closely applied in such cases in the future, and that women have the option of recording their statements in English and Hindi. “It depends from person to person and situation to situation," she says. “Everyone’s case is not the same as mine."
She is not the only person to draw attention to such cases. In 2014, the Association for Aiding Justice filed a similar PIL. In another case being handled by Vaswani and his team, and which the court has now clubbed to hear along with X’s petition, the accused has also sought guidelines in a petition seeking the quashing of a similar rape charge.
Still, it is deeply unusual for a victim to come forward and seek to change a law she used herself. “This is a good cause," says X. “I have seen a lot of people getting trapped because they think later ‘Maybe filing a case was not a good decision’."
But can we use one case as a basis for a wider discussion?
"I would be cautious in commenting on the broad issue of breach of promise to marry through the lens of this case. Since facts of each case may differ, a general rule to not register such cases may result in injustice," says Madhu Mehra, executive director of Partners for Law in Development, a legal resource group working on justice for women. "From the news report, the heart of the matter seems to be incorrect recording of complaint by the police. Can we peg a discussion on the breach of promise to marry around a case that admittedly involves incorrect recording by the police?"
However, there are those who question the need for guidelines since filing an FIR is anyway just the first step in any investigation process.
Not all cases come with the same set of circumstances. Sometimes the woman is pregnant, abandoned by the man and their natal families, leaving them few options, says Audrey D’Mello, programme director at Majlis, which also works with rape victims and the police.
She cautions that such petitions could affect the police’s willingness to record complaints across the board. “Then you are destroying all efforts put into helping a woman when she goes to a police station (with a complaint)," she says. “On what benchmark will you have guidelines?
“Any guidelines would undermine the women’s movement."
Bhavya Dore is a Mumbai-based freelance journalist.