Updated: March 5, 2021 8:55:14 am
The Supreme Court, while hearing an application for quashing the FIR in a promise to marry case recently, granted the accused a stay of arrest for eight weeks. The accused alleged that the sex had been consensual when he and the woman lived together, and that “the FIR was lodged after the relationship went sour”.
This case spotlights the growing category of “promise to marry” cases — where sexual violence is brought to light in an intimate partner relationship following the accused’s reneging of the promise to marry. Scant judicial attention has been paid to the casteist and patriarchal underpinnings of consent in these cases. There is a need for conceptualising harm caused to women in intimate partner relationships beyond criminal law’s standard of consent.
Promise to marry cases arise from two situations: First, when rape is committed and a promise of marriage is made to restrict the woman from accusing rape. This promise is then manipulated to extract further sexual intercourse. Second, when the promise itself forms the basis of sexual intercourse in a romantic relationship.
The SC laid down the jurisprudence of promise to marry cases in Uday v. State of Karnataka. The accused allegedly raped and impregnated a 19-year-old woman he was romantically involved with, by promising to marry her. The court acquitted him on the grounds that the circumstances of being “madly in love” make promises “lose all significance, particularly when they are overcome with passion and succumb to sexual temptations”. Therefore, Section 90 of the IPC which vitiates consent obtained under misconception of fact or fraud does not apply. The court attributed the survivor’s pregnancy to her “promiscuity”. It endorsed endogamy by stating that she should have known marrying the accused was difficult given that he was a Brahmin and she belonged to an OBC group.
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A similar casteist reasoning was employed to acquit the accused in Dileep v State of Bihar. The victim was shamed, even though the accused had promised to marry her in order to silence a past incident of sexual violence. This judgment extends the analysis in Uday’s case. Misconception of fact under Section 90 requires a false promise since inception, that is, the accused never intended to marry the survivor. It also distinguishes between a breach of promise of marriage and a false promise by stating that only the latter vitiates consent under Section 90. This position has been reiterated in subsequent judgments.
The language of “love” and “passion” used by the courts to interpret consent in these cases obfuscates the power dynamics in romantic relationships, particularly in inter-caste relationships. Through both judgments, the SC has advocated caste endogamy. In its recognition of caste as a legitimate barrier to marriage, the court seems to suggest that women who fail to adhere to caste hierarchies ought to pay the price for it.
Criticism of these cases has revolved around their undermining of women’s agency and the patriarchal institution of marriage. These critiques fail to contextualise agency within the power dynamics of intimate partner relationships, and invisibilise harm caused to women in such relationships. In a casteist society, Bahujan women have been impregnated and later abandoned owing to caste differences.
An expansive definition of consent under criminal law may not successfully address the intricacies of intimate partner violence, given the risks of over-criminalisation and its disparate impact on the marginalised. Therefore, it is worth reconsidering and redefining harm beyond a criminal legal determination of consent. This requires a feminist expansion of the other kinds of recourses available to address harms. Several countries are adopting restorative justice practices. In the Dileep case, despite its problematic reasoning, the court acknowledged the harm caused, and held the accused accountable for damages under civil law. Investing in understanding harm beyond the penal standard of consent is crucial, especially in a country that denies the existence of intimate partner violence.
This article first appeared in the print edition on March 5, 2021 under the title ‘Crime and consent’. The writer is associated with Bhopal-based Criminal Justice and Police Accountability Project. She would like to thank Jasun Chelat and Srujana Bej for their assistance with this article.
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