By Ila Ananya
My friend once eavesdropped on three women at a coffee shop in Bangalore. One of them had just read the news that a woman who had been in a relationship with a man much older than her, had filed a case of rape against him in a court in Mumbai, stating that he had promised to marry her. My eavesdropping friend says there were five minutes of silence after this. Then, almost simultaneously, one of the women said, “Paapa, she must have had so many expectations,” while her friend blurted out, “What the hell, how can that be rape!”
This conversation is perhaps the two most common ways in which we view breach of promise (to marry) cases. They are often reported as ‘false rape cases’. Earlier this year, the Bombay High Court commented that the number of such cases had increased, and there has even previously been a petition seeking to ‘prosecute false rape accusers’. But why do women choose to file cases of rape when there has been a breach of promise to marry? And is it right to call them false rape cases?
Last year, the Bombay High Court had faced a petition seeking guidelines to ensure that people are not booked under what has been termed as ‘false charges of rape’ after a relationship ends. Now, on 28th December 2016, there was a new one — this time from a man and woman who used to be a couple.
Here is the story of this petition. In 2015, a 20-year-old woman, who was in a relationship with a 34-year-old man, filed a case against him, intending to book him under cheating (Section 417 of the Indian Penal Code [IPC]). She had just found out that he was already married and that his promises to marry her were false. The police, however, also booked him for rape under Section 376 of the IPC (punishment for rape). A petition was filed in the Bombay High Court seeking to quash this FIR.
Now, remarkably, the two jointly filed a petition in the Bombay High Court, seeking guidelines against this happening again elsewhere. Yesterday, on 9th February, the Bombay High Court heard the case. The petitioners’ lawyer, Swapna Kode, tells us that after the hearing, the court directed them to file the petition as a PIL since it was a matter of public interest.
In 2013, the Supreme Court (SC) had heard a similar case in Deepak Gulati vs State of Haryana. The Punjab and Haryana High Court had previously convicted him in a rape case filed by a 19-year-old woman and her family. According to the judgment, the man had “induced” her to go with him to Kurukshetra to get married, and had “sexual intercourse with her against her wishes behind bushes,” promising to marry her. When they reached Kurukshetra, they stayed with the man’s relatives for a few days, and the man “committed rape upon her” before he threw her out of his house on the fourth day.
Here, the SC declared that for such cases to be considered rape, the court has to be convinced that the man had “clandestine motives” from the start. They insisted that there was a distinction between breach of promise (for any reason), and not fulfilling a promise that had been false in the first place. The SC acquitted the man of all charges.
In such cases of breach of promise to marry, there is no separate law, as you might think from fleeting readings of the news. Instead, three sections of the IPC are usually deployed. Strangely, the police, who often make it difficult for women to report sexual violence (more on this in TLF’s Ready to Report series), tend to happily file FIRs in these cases. The FIRs are usually filed under Section 375 (rape), Section 376 (punishment for rape), and Section 417 (cheating). Each of these sections are supposed to be considered along with Section 90, which defines consent and states that that if consent is given under a “misconception of fact”, then it cannot be called consent.
The 2013 SC judgment brings fresh complications to the issue of consent. It demands proof of something as vague and difficult to establish as the accused’s intention, and places consent in this tricky ground — the few cases that make it to High Courts have got different kinds of sentences. Lawyers say that most cases end in acquittal or settlements in lower courts, because original intent is so hard to prove. However, in August 2015 the Delhi High Court sentenced a man to 10 years in such a case, while the Bombay High Court in March 2016 granted a man bail stating that “when the woman is educated and mature, she can say no.”
According to Rebecca John, senior advocate at the Delhi High Court, there has been a rise in the number of such cases being registered in Delhi. In her experience, John says, most of these cases are filed by people who, during the course of their relationship with a man over many years, have had consensual sex. She argues that we need to look at each of these cases more carefully, because, “Doesn’t anybody, man or a woman, have the right to change their mind about marriage?”
Mrinal Satish, Associate Professor of Law, and Executive Director of Centre for Constitutional Law, Policy and Governance at the National Law University, Delhi, argues that when women file these cases themselves, it is often because they feel cheated in finding that they have consented to sex only to find that the man doesn’t want to marry them.
But are there other reasons — other than feeling cheated — involved? We asked Jayna Kothari, co-founder of Centre for Law and Policy Research, who practices as a Counsel in the Karnataka High Court and Supreme Court. In a case that Kothari handled, a woman she was representing had been living with a man for three or four years. They had rented a house in both their names, stating that they were married, and the man had taken out a car loan, naming the woman as his wife and guarantor. When she asked for them to get married, he would constantly put it off, until a day when they went to a temple and had a simple marriage of tying thalis. Finally, the man left, saying that he was in love with someone else, and denying that they had ever been married.
Most of these cases are usually filed by women coming from lower middle-class to middle-class families. Kothari says there is more than a feeling of being cheated — “These are relationships built over years and there are, among emotional complications, even things like financial issues involved,” she says. In many other instances, women filing cases said they had been promised marriage but when they got pregnant, had been left by the men.
The media, with an almost too-easy dismissal, has been reporting these cases as a rise in “false rape cases” being filed against men — something Kothari says doesn’t quite seriously engage with the issue, just as the phrase “breach of promise to marry” doesn’t. As Satish says, the dismissal of such cases as ‘false rape cases’ by the media, and the courts declaring that it is ‘misuse’ of the law, only results in pushing the false idea that women are taking advantage of the law.
Is this feeling of being cheated something that can be explained in our laws? How does one begin to explain it? Does it begin to go beyond this? As Rebecca John says, “I don’t think, as activists, as feminists, we should shirk from the exercise of looking into this. We need to look into whether they fall into the category of rape, and in what circumstances should it be called rape, and whether individual rights are being violated as a consequence of these cases being registered.”
Co-published with Firstpost.