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2 min read . Updated: 29 Sep 2019, 11:19 PM ISTDeepti Chaudhary
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Supreme Court: Consensual physical relationship of live-in partners not rape
Supreme Court: Consensual physical relationship of live-in partners not rape
PTI|
Updated: Jan 03, 2019, 03.20 PM IST
The bench passed the order while quashing criminal proceedings against a government doctor in Maharashtra against whom a FIR was lodged by a nurse working under him.
HIGHLIGHTS
- The Supreme Court has held that rape charge cannot be invoked in case of consensual sex between live-in partners
- The bench passed the order while quashing criminal proceedings against a government doctor in Maharashtra
- The doctor approached the apex court after his plea to quash FIR against him was rejected by Bombay high court
NEW DELHI: Consensual physical relationship between live-in partners does not amount to rape in case the man fails to marry the woman due to circumstances beyond his control, the Supreme Court has held.
The top court said this while quashing an FIR lodged by a Maharashtra-based nurse against a doctor, who were in a live-in relationship "for quite some time".
"Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception," a bench of Justices A K Sikri and S Abdul Nazeer said in a recent verdict.
The bench also said that if "the accused has not made the promise with the sole intention to seduce the prosecutrix (woman) to indulge in sexual acts, such an act would not amount to rape".
According to the FIR, the woman, a widow, had fallen in love with the doctor and they started living together.
"There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently," the bench said.
It said if the man had any mala fide intention or clandestine motives, then it was a clear case of rape.
"The acknowledged consensual physical relationship between the parties would not constitute an offence under section 376 (rape) of the IPC," the bench said.
Referring to the facts of the case, the court said they were living together for quite some time and when the woman came to know that the man had married someone else, she lodged the complaint.
"We are of the view that, even if the allegations made in the complaint are taken at their face value and accepted in their entirety, they do not make out a case against the appellant (doctor)," the bench said.
The man had approached the top court against the verdict of the Bombay High Court which had dismissed his plea seeking quashing of the FIR lodged against him.
Why India sees sex on false promise of marriage as rape
Why India sees sex on false promise of marriage as rape
By Geeta PandeyBBC News, Delhi
- 19 April 2019
Image copyrightGETTY IMAGES
If a man goes back on his promise to marry a woman, can sex between consenting adults then be considered rape?
The Indian Supreme Court recently answered this question with a "yes".
In a significant verdict, the court upheld a trial court order convicting a doctor of rape in the central state of Chhattisgarh because he had a consensual sexual relationship with a woman after he'd promised to marry her, but then went back on his word and married someone else.
Judges L Nageswara Rao and MR Shah said the woman gave her consent because she believed that the doctor intended to marry her, therefore, it could not be regarded as consent.
India is still largely conservative when it comes to matters of sex and sexuality. Virginity is prized and a woman who's known to have had pre-marital sex may find it hard to get married.
The judges said that the accused had a "clear intention" not to marry her, adding that "sexual intercourse under total misconception cannot be treated as consent". Though the top court reduced the 10-year prison term awarded by the trial court to seven, the judges said that he "must face the consequences of the crime committed by him".
This is not a rare case - according to the government's crime data for 2016, police recorded 10,068 similar cases of rape by "known persons on promise to marry the victim". In 2015, that number was 7,655.
A few recent cases involving 'breach of promise to marry'
A few recent cases involving 'breach of promise to marry'
- In April 2019, a court in the southern state of Karnataka freed a man on bail, saying that educated women in a pre-marital relationship cannot claim rape after the relationship is over - even if the consensual sex was on the promise of marriage
- In 2017, a senior journalist in the southern state of Kerala was arrested after a female colleague accused him of sexually harassing her. According to police reports, the two were in a relationship for more than a year. He had allegedly promised to marry her, but then later changed his mind
- A Scottish national was arrested in the capital, Delhi, in 2016 after a woman alleged that he sexually assaulted her for five months after promising to marry her. She told police that he later ended their relationship
The Supreme Court judges advised the trial courts to "very carefully examine whether the man actually wanted to marry the victim or had malafide motives from the start and had made a false promise only to satisfy his lust".
This essentially means that if a man can prove that he intended to marry the woman but changed his mind later, then it's not rape. It's only considered rape if it's established that he had dubious intentions from the start.
Now as "intention" is not easy to prove, it leaves such cases to the discretion of judges and also concerns that the law can be misused.
In fact, perturbed by the high number of such cases, Justice Pratibha Rani of Delhi High Court said in 2017 that women use rape laws for "vendetta" when a relationship sours.
"This court had observed on [a] 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 up 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 incidents of rape maybe 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 had been given on promise of marriage," the judge said.
Many Indians believe rape laws should not be used to regulate intimate relationships, especially in cases where women have agency and are entering a relationship by choice.
Many in the judiciary, too, seem to share this opinion and, that to some extent, explains why the conviction rate in such cases is very low and most cases lead to acquittal.
In 2016, the Bombay High Court also observed that an educated adult woman who had a consensual sexual relationship cannot later allege rape when the relationship sours.
Mumbai-based senior lawyer and activist Flavia Agnes, however, argues that what we need to remember is that many of these complaints come from socially disadvantaged and poor women in rural areas who are often lured into sex by men on false promises of marriage and then dumped as soon as they get pregnant. She adds that under the present legal system, the rape law may be the only recourse they have to claim damages or even maintenance.
That's why she suggests a separate section under the rape law to deal with these cases where instead of harsh jail terms, the deceiving men could be made to pay damages, maintenance and future security for the child.
What divorce and separation tell us about modern India
What divorce and separation tell us about modern India
Soutik BiswasIndia correspondent
- 29 September 2016
Image copyrightAFP
Image captionLess than one in 1,000 marriages end up in divorce in India
"There can be no objection to the right of divorce. But conferring this right on women, by itself, would be unmeaning and probably more productive of harm than of good," wrote a commentator in a floridly-worded essay in May 1949 on the changing status of women and divorce in India.
Writing in the respected journal Economic Weekly, Roma Mehta said women in India were "more protected and much better cared for than in the West"; that they found "more happiness more often than not in her home; and her troubles and heartaches were solved in family" where she lived. "The incompatibility may sometimes be very great indeed; but in spite of it all, the family is maintained."
She argued that divorce did not "concern the very vast majority of people" in a country where the economy is fundamentally rural, people are uneducated with no contact with the outside world, and the "clamour for better living is absent". So, wrote Ms Mehta, the "problems of love and hate, of marriage and remarriage, are solved on a simple plan which is worked out for the community only".
Changing equations
Changing equations
That was then. The landmark Hindu Code Bill passed in the parliament in the mid-1950s gave women property rights, outlawed polygamy and allowed partners to file for divorce. The laws were further tweaked in 1976 to allow divorce by mutual consent.
Over time, the traditional joint family has given way to nuclear families in cities and towns; and more and more women are going to work or setting up their own businesses. Many urban women no longer have to depend on their spouses for financial security, men are sharing household chores; and gender equations are slowly changing.
Now a significant study by economist Suraj Jacob and anthropologist Sreeparna Chattopadhyay has examined data from India's census to offer - possibly for the first time - some insights into divorce and separation in India.
Image copyrightAFP
Image captionLove marriages are becoming common in India
India's census gives its citizens the following choices to select their status: never married, separated, divorced, widowed, married. It is true that some women may not report separation or divorce because of the stigma attached to the status. But here are some of the more salient findings of the study:
- 1.36 million people in India are divorced. That is equivalent to 0.24% of the married population, and 0.11% of the total population.
- More strikingly, the number of people separated is almost thrice the number of people divorced - 0.61% of the married population and 0.29% of the total population.
- More women are divorced and separated than men.
- Divorce rates in north-east states are relatively higher than elsewhere in India: Mizoram has the highest divorce rate (4.08%), more than four times that of Nagaland, the state with the second highest rate (0.88%).
- Gujarat reports the maximum number of divorce cases among bigger states - with a population of more than 10 million - followed by Assam, Maharashtra, West Bengal and Jammu and Kashmir.
- Meghalaya has the most number of cases of separation, followed by Mizoram, Sikkim, Kerala and Chhattisgarh. Three of these five states are in north-eastern India.
What does this tell us about breakdown of marriages in today's India?
For one, more people are separated than divorced in India because of stigma associated with divorce, and the time taken in resolving disputes in the slow-moving Indian courts.
Image copyrightAFP
Image captionMore women are divorced than men in India
The gender gap - more women divorced and separated - is even more striking, and tells a story about India's gender biases and how patriarchy operates.
This essentially means that either women are choosing to stay divorced or are not finding partners for remarriage, unlike men. "It is consistent with the bias that women face in India," says Ms Chattopadhyay. "You have the right to divorce, but remarriage remains tough because of prejudices against a divorcee."
Thirdly, the gap between divorces and separations in cities and towns and villages is "very low" - a finding that has come as a "big surprise" to the researchers. "So class may or may not make a difference, but residence does not seem to make a huge difference," they say.
'Not surprising'
'Not surprising'
Thirdly, divorce and separation rates vary wildly across states and regions.
Divorce and separation rates in the north-eastern states - where tribal laws allow for informal relations and women sometimes enjoy a relatively higher status because of a matrilineal system - are relatively higher than elsewhere in India.
Northern states like Uttar Pradesh, Bihar, Haryana and Rajasthan which are known to be deeply patriarchal, have much lower divorce and separation rates.
An international study of divorce rates of 71 countries - one of the few studies showing global comparisons - showed that they range from a low of 0.04% of the total population in Georgia to a high of 0.46% in Belarus.
Interestingly, Gujarat's divorce rate is greater than of Belarus, and Bihar's closer to Georgia suggesting a "striking level of regional diversity".
Also, say the researchers, the "divorce rates in India are neither surprising nor unsurprising".
Image copyrightAFP
Image captionThere is very little gap between divorces in cities and villages in India
"Although there is a lot of anecdotal evidence about 'skyrocketing' divorce rates in aggregate terms, we are not particularly high globally in terms of the rates of divorce," say Mr Jacob and Ms Chattopadhyay, who teach at Bangalore's Azim Premji University.
"India is somewhere in the middle. Also given that rates of living together before marriage are extremely low in India and marriage is universal, it wouldn't be surprising that for some members of the younger people, first marriages can end up in divorce."
Nupur Dhingra Paiva, a Delhi-based clinical child psychologist, tells me that when she started out three years ago, she would barely get one case every two months of divorced parents bringing in their troubled children for counselling.
"Now I get one such case every week. The couples are all middle and upper-middle class, and both the man and woman are working. Adultery and incompatibility are the two common reasons that are cited for the breakup." Less than one in 1,000 marriages end up in divorce in India, but the times, they are a-changin.
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