By Sharanya Gopinathan

Do you have friends who tell you that the Courts and justice systems are the only arms of the government we can trust any more, and that they’re the last bastions of justice in increasingly dark political times?

I have friends who believe it, and I always find it a bit hilarious when they say this, because the courts have proven, again and again, that they’re really not our best friends. Yesterday, for example, LiveLaw reported that the Delhi High Court remarked that “women use law as weapon for vengeance and personal vendetta and tend to convert consensual physical relations as an incident of rape”.

This was in a case where a woman accused a man she was living with of rape on false promise of marriage. Through the course of the case, the woman had admitted that she had filed the rape case due to “some misunderstanding”, and when she filed a case for the quashing of the FIR, stated that the physical relationship was consensual and that she was now married to the accused.

Whatever the specifics of the case that inspired these remarks may be, the remarks made by the Court are still grossly lacking in complexity and nuance, and fail to take a truly comprehensive view of both consent, and what the media and Men’s Rights Activists like to call “false rape cases”.

“This Court had observed on number of occasions that the number of cases where both persons, out of their own will and choice, develop consensual physical relationship, when the relationship breaks due to some reason, the women use the law as a weapon for  vengeance and personal vendetta. They tend to convert such consensual acts as an incident of rape may be out of anger and frustration thereby defeating the very purpose of the provision. This requires a clear demarcation between the rape and consensual sex especially in the case where complaint is that consent was given on promise to marry,” said Justice Pratibha Rani.

That last line, especially, needs some serious unpacking. The idea of consent isn’t just limited to consenting to a certain physical act, but also involves being aware of and accepting the circumstances under which consent to that act is given. In 2015 in the UK, for example, the police apologised “unreservedly” to seven women protesters who were deceived into forming long-term relationships with under cover police officers. The police said the relationships were “a gross violation of personal dignity and integrity”, because the women thought they were consenting to physical and emotional relationships under circumstances that were different from the truth.

While this may be a more obvious violation, it shows that consent can be nuanced and layered issue. The way women feel when long-term physical relationships that were consented to under the expectation of marriage break down is complex and involves emotional, financial and physical repercussions, and consent itself stands on a variety of factors. Their reactions to this can’t be dismissed as women filing “false rape cases” or misusing the law for vengeance.

As Rebecca John, a senior advocate at the Delhi High Court, said to us in February, this is an idea that needs deeper introspection and attention to make complete sense of. “I don’t think, as activists, as feminists, we should shirk from the exercise of looking into this,” she said, “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.”