Pyar, sex, Dhoka

"If a married man has sex by hiding his earlier marriage, he must be dealt with under Section 493 of IPC. The cases where the consent of the girl is secured after promising marriage can’t be condoned as ‘romantic involvement’".

In October 2014, a popular daily newspaper carried an interesting news item “HC unties the knot for man who claims he was forced into third marriage”. It described the judgment of the Bombay high court, which declared the third marriage of Dilip null and void since he was married at the time.

In 2003, three years after his wife passed away, Dilip married Sheetal (name changed) and had a son from each of his two wives. According to Sunita (name changed), in 2009, she responded to an advertisement for marriage and met Dilip. They became friendly and started living together as he promised to marry her. However, he retracted later on, prompting her to file a case of rape. Dilip alleged that he was forced to marry Sunita as she had demanded Rs 3 lakh as compensation. Two months after the marriage, she came to know about his previous marriage.

The news report was sympathetic towards Dilip and projected the woman as the manipulator.

Ironically, the court did not deem it fit to invoke the provisions of Section 493 of IPC, which prescribes jail term of 10 years to a man who cohabits with a woman by deceiving her into believing that she is married to him. Nor did the court attempt to protect her rights under the Protection of Women from Domestic Violence Act (PWDVA), which aims to secure the rights of women whose marriages are technically defective, by incorporating the clause “relationships in the nature of marriage.”

So it appears that a man who sexually exploits a woman can, despite his deceit, get the sympathy of the court and the society at large.

At the other end of the spectrum is the ruling of the Madras high court in June 2013, which attempted to provide maintenance to an abandoned wife and her children by holding that every act of sexual indulgence must be construed as an act of total commitment (like marriage) and the man must be held responsible for the consequences. This judgment met with widespread criticism on the ground that it curb the sexual freedom of young people who wish to engage in casual sexual activity and was dubbed as regressive by newspapers and social media.

The December 2014 judgment of the Bombay high court in the case of Nashik resident Rahul Patil, who had been booked on charges of cheating and rape following a complaint filed by his former girlfriend Seema Deshmukh, held that pre-marital sex is not shocking and that not every breach of promise to marry implies rape. News reports hailed this to be one of the most significant judgments of the year.

While granting anticipatory bail, the court held that pre-marital sex had become the norm in India’s big cities. Seema had claimed that she was pregnant and that despite promising to marry her, Rahul married someone else. Rahul claimed that it was a consensual relationship and they could not get married due to their different religious affiliations.

Both were urban, middle class and educated (both are lawyers) and in the relationship since 2006. When the accused declined to marry Seema in 2009, she attempted suicide. Thereafter, the relationship continued.

Justice Mridula Bhatkar, who delivered the judgment, commented, “Though unlike Western countries, we have social taboo and are hesitant to accept free sexual relationship between unmarried couples or youngsters as their basic biological need, the court cannot be oblivious to the changing behavioural norms.”

This judgment distinguished between urban educated women from the upper strata and the poor, illiterate, small town women who are lured into a physical relationship through the promise of marriage, and held that the two are not comparable. An educated woman enters into a relationship with full knowledge and consent. Hence, it cannot be construed as rape, which is without consent.

But in 2010, the Delhi high court, in Nikhil Parasar vs. NCT of Delhi, advanced a more compassionate view and held that if the plea of consensual sex was allowed to be taken in all “promise to marriage” cases, “…it will result in unscrupulous persons taking undue advantage of innocent girls by promising marriage, without having any intention to do so, persuading the girl to have sexual intercourse by making her believe that he was definitely going to marry her and then abandoning her, after robbing her of what is most dear to her… A view, which is likely to result in victimisation or exploitation of innocent girls, needs to be avoided and the courts need to take a view, which would discourage unscrupulous persons from taking advantage of innocent girls by alluring them and having intercourse with them, on a false promise of marriage.”

Faced with these diverse views, which range from virginity being the most prized possession of women to promiscuous women not deserving any sympathy or protection from the courts, what should the police do when a woman approaches them?

In most cases, the girl is ditched when she becomes pregnant. She is literally left holding the baby while the guy goes scot-free, without any liability towards her and the child. Mostly, all that the girl wants is for the police to pressure the boy/man into marrying her and the police does that by threatening to file a case of rape.

The number of such cases is not insignificant. Studies conducted in Mumbai and Delhi revealed that one-third of all rape cases are of this category. Court judgments may distinguish between the urban, educated girls — labelling them as sexually active hence undeserving of rights — from the poor, rural women who are considered gullible and can be lured easily. But will it be possible to make such a distinction while registering the complaint at a police station? And what about the urban poor? Do they form a class apart?

The dilemma arises from popular notions regarding rape. All of us subscribe to them by making violent “stranger rapes” to be the norm in academic and legal discourses and prescribing stringent punishment, including death penalty, while paying scant attention to the overwhelming number of “acquaintance rapes”, including those which occur within the family and under the promise of marriage. The rape discourse continues to be dominated by archaic notions about women and their sexuality, which place chastity and virginity at the centre stage and dub those who do not fit this prescription to be undeserving of rights.

A fine hairsplitting takes place on whether the girl was romantically involved or lured into sex on the promise of marriage. A girl in her teens is expected to know the difference, while the boy/man is allowed to walk free after sexually exploiting her, fathering an illegitimate child and ruining her future. There is no sympathy for the woman, even as the man commits deceit, even, at times bigamy.

Stringent punishment is not the answer. We need to find solutions elsewhere. This can happen only when we address the issue squarely and examine the different hues of sexual violations.

If a married man has sex by hiding his earlier marriage, he must essentially be dealt with under Section 493 of the IPC and also booked for cheating. A case where the consent of the girl for sex has been secured after promising marriage, cannot be brushed aside and condoned as “romantic involvement”. Women and girls who have endured mental trauma, social stigma and financial loss should be compensated. When a relationship ends in pregnancy, the man must be made financially and socially liable to the child he has produced.

The writer is a women’s rights lawyer

By Flavia Agnes