In the name of marriage

Pre-marital (or extra-marital) sex has become the norm these days
Mumbai: In my previous article Love, sex aur dhoka (February 10), I had discussed the lax attitude of our courts towards men who cheat on their wives and sexually exploit younger women promising marriage. And when these women become pregnant, or the men become wary of them, they discard them. The woman is then accused of filing a false case of rape and faces social stigma as a woman of lost virtue, while the courts come to the rescue of men and absolve them of all criminal and civil liabilities.
The discussion revolves around some high-profile cases such as the Madhur Bhandarkar-Preeti Jain case, or the more recent one of Karthik Gowda, son of Union minister Sadananda Gowda, where a young model alleged that Karthik Gowda secretly married her, dumped her and went on to marry someone else. This type of discussion in print and television media has led to a gradual build-up of public opinion in favour of such men. Since we have become a modern nation, pre-marital (or extra-marital) sex has become the norm and hence these cases ought not be brought within the ambit of “rape” which is the most heinous crime.
The headlines are explicit in their view. “Can yesterday’s sex be tomorrow’s rape?”, “Can failed affair lead to rape charges Supreme Court asks” “Pre-marital sex not shocking, every breach of promise to marry is not rape: Bombay HC” etc. Policy level changes appear to be on the anvil, to exclude ‘promise of marriage’ cases from the ambit of rape law. The trend is moving almost in a similar trajectory, as the adverse propaganda around Section 498A, IPC (cruelty against wives) which resulted in the Supreme Court watering down its provisions while making scathing remarks about women who file cases under it, despite a large number of women still committing suicide due to cruelty and dowry harassment.
There is no doubt that such a move will indeed help to bring down the number of rape cases in the country, since on a rough estimate, one-third of all reported rape cases belong to this category. So we are dealing with a large number of women here, who are caught in this web of lies, deceit and sexual exploitation. Their lives in shambles, a baby in their arms, they are told that it is their fault. Taking a high moral stand, they are told they should have known the consequences of their immoral acts.
While it is important to grasp the judicial approach towards them, it is even more important to contextualise their situation. Usually these women are very young, barely out of their teens, belong to the lower strata, a dalit, or an OBC. The attitude of the courts while absolving the accused is that since she was aware that a marriage between them was not possible, it is her own fault for believing in the false promise the man made, because people in love, in a moment of passion may promise anything. She cannot fall prey to such romantic assurances and indulge in a sexual relationship until she is five-six months pregnant. Further, she had a choice to abort, and carry on with her life which she did not exercise. Too bad for her, why are we blaming the poor guy?
A much-acclaimed ruling in this realm is Uday v. State of Karnataka (2003), where a 19-year-old college girl from a backward caste was induced into a relationship by a brahmin boy who dumped her when she became pregnant. A sessions court convicted him and sentenced him to seven years imprisonment and a fine of Rs 20,000 out of which of Rs 10,000 to be given to the girl. In appeal, the high court upheld the conviction, but reduced the sentence to two years and enhanced the fine to Rs 50,000.
However, absolving him of all liability, the Supreme Court explained: “She was a grown up girl, studying in a college and was deeply in love. She was aware of the fact that since they belonged to different castes, marriage between them was not possible. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. Despite this, she did not resist the overtures and, in fact, succumbed to it. She freely exercised a choice between resistance and assent. She freely, voluntarily and consciously consented to having sexual intercourse and her consent was not in consequence of any misconception of fact.” This is a warning to all girls, who are romantically involved with boys from higher castes. However, there was a note of caution that there cannot be a straitjacket formula for determining whether consent to sexual intercourse is voluntary and it can only be determined after examining the facts of the case by a competent court. Despite this, it is used as a landmark ruling and dominates the legal discourse on promise of marriage and is often relied upon to acquit the accused.
Contrary to this, in Yedla Srinivasa Rao v. State of Andhra Pradesh (2006), while upholding the conviction of the high court, the Supreme Court held: “It is clear that the accused made a false promise that he would marry her. The intention of the accused right from the beginning was not bona fide and the poor girl submitted to the lust of the accused completely being misled by him by a promise of marriage. This kind of consent obtained with a clear intention not to fulfil the promise and obtained under total misconception, cannot be treated as consent. It is always a matter of evidence whether the consent was obtained willingly or through a false promise which the accused never intended to fulfil.” This case concerned a poor illiterate girl from a rural background who was five months pregnant.
In Deelip Singh v. State of Bihar (2005), while acquitting the accused who had indulged into a love affair with a 16-year-old, the Supreme Court made a hair-splitting type of distinction between “rape under promise of marriage” and a “breach of promise of marriage” and held that there was no evidence to show that the accused had no intention to marry her at all and that the promise he made was false to his knowledge. Hence it was a case of breach of promise to marry rather than a case of false promise to marry. However, to compensate for the trauma suffered, the court awarded the victim '50,000 as compensation.
In a landmark case of 1996, Bodhisattwa Gautam v. Subhra Chakraborty, a case of long-term relationship in which the girl was made to abort twice, the Supreme Court while rejecting the plea for quashing the proceedings awarded the girl interim compensation. While holding that such proceedings cannot be quashed, the court ruled that the jurisdiction to pay interim compensation must be treated as part of the overall jurisdiction of the courts trying the offences of rape which is an offence against basic human rights.
Though we are accustomed to viewing all “rapes” as stranger rapes, it cannot be a “one hat fits all” type of solution. Stringent punishment for 10 or 20 years cannot compensate her for the trauma she has suffered. In cases of this type what the victim usually seeks is a combination of civil and criminal remedies, which will help her rebuild her life, overcome the stigma and provide financial support to raise her child and punish the accused for cheating and deceit. There is an urgent need for more innovative thinking in this realm.
The writer is a women’s rights lawyer
( Source : dc )
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