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If Promise to Marry Was Made in ‘Good Faith’ Before a Couple Had Sex, Not Fulfilling the Promise Isn’t Rape: SC

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Aug 3, 2022

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Image credit: Wikipedia

Last week, the Supreme Court dismissed a petition alleging rape due to a false promise of marriage. Essentially, the petition invoked an interpretation of the Indian rape law that interprets consent more broadly as one that is fully informed, and given without any misconception around the circumstances. This means that someone consenting to sex under the impression that they would be married to their partner in the future — going by what their partner promised — cannot have consented if the promise itself was false.

In the present case, Justices Sanjay Kishan Kaul and M.M. Sundresh referred to a previous ruling that distinguished between a false promise and one that was made in “good faith” at the time of making it, but could not subsequently be fulfilled. “The parties chose to have [a] physical relationship without marriage for a considerable period of time. For some reason, the parties fell apart. It can happen both before or after marriage,” the bench noted.

The judgment has precedent: a Delhi High Court verdict earlier this year came to a similar conclusion, noting that a “genuine promise” to marry that subsequently failed to materialize due to external circumstances cannot be considered grounds to try someone for rape. The Kerala High Court, too, had noted that merely not fulfilling a prior promise to marry isn’t sufficient to constitute the offense of rape.

The Calcutta High Court added another layer to this last year, when it ruled that a man who doesn’t fulfill his promise to marry someone due to opposition from his family elders, cannot be charged with rape.

The idea that false promises of marriage can constitute rape comes from an interpretation of the rape laws that protect women from being coerced into intercourse they may not otherwise have participated in willingly. Judicial precedence on the issue widens the scope of consent by acknowledging wider social circumstances in India that impose a significant social cost on women who engage in premarital sex.

Several individuals have been convicted under the rape law for the offense. But the legal terrain surrounding it is tricky: it all relies on interpreting the intention of the person “obtaining” consent. A spate of judgments from various courts earlier interprets consent in a manner that belies the possibility of sex under a deliberately false promise of marriage to be considered consensual. This is because the person consenting isn’t fully informed of the circumstances. The idea is that when a promise of marriage is made under false pretenses, there are larger societal consequences for the women which may otherwise lead them to withhold consent. In many of these judgments, rape charges were filed after partners refused to marry complainants even after they were pregnant as a result of having sex under the promise of marriage.

Lately, however, courts have been coming around to the notion that there’s a difference between making a false promise, and not upholding a promise subsequently. Some, like the Kerala High Court in a recent judgment, decried the fact that this particular law isn’t gender neutral, and that women can’t be charged with rape for falsely promising marriage to a man. It all comes down to how the legal system understands consent, autonomy, and the norms pertaining to sex and gender as they relates to marriage.


Related on The Swaddle:

Man Faces Criminal Charges for Refusing to Marry After Sex Due to Woman’s Caste Identity


Section 90 of the Indian Penal Code defines what consent isn’t: one that is obtained under fear or misconception. It’s the latter clause that often determines which way a “false promise” case will go — wherein the understanding is that consenting to sex under the incorrect belief that marriage would follow isn’t consent at all. If the person “obtaining” consent promised marriage with the knowledge at the time that he had no intention to keep it, they can be charged with rape.

The notable aspect of Indian law, in this regard, has to do with the way it considers consent: on the one hand, it recognizes and protects individuals from coerced sex in a patriarchal society; on the other, it reinforces the notion that premarital sex is only acceptable if it’s with someone a woman will eventually marry anyway. Paradoxically, it both undermines and protects women’s bodily autonomy: the former because it ties consent to marriage, the latter because it prevents marriage from being a shield for obtaining consent.

The fact that wider societal norms are relevant to the definition of consent was noted by the Bombay High Court recently when it acknowledged that sexual mores are changing:

“A major and educated girl is expected to know [the] demand of her body and to understand the consequences of getting into [a] sexual relationship. Today the law acknowledges, live-in relationship[s]. The law also acknowledges a woman’s right to have sex, [a] woman’s right to be a mother, or [a] woman’s right to say no to motherhood. Thus, [in] having [a] sexual relationship with a man, whether [it] is her conscious decision or not is to be tested independently depending on the facts and circumstances of each and every case and no [straitjacket] formula or any kind of labeling can be adopted,” the Court observed.

But while the law may appear, at face value, to be based on outdated norms, it still provides valuable protections against the ways in which sex is weaponized through promises of marriage. Just this year, a man faced criminal charges for refusing to marry a woman due to her caste identity — when he had previously not only promised to marry her before having sex, but was also aware of her identity at the time. The Bombay High Court upheld the man’s conviction at the time, but conflicting legal opinion on the law itself may undermine this. The Calcutta High Court’s aforementioned judgment in another case, for instance, could do more harm than good: in a casteist society, families frequently object to inter-caste marriages. But upper caste individuals could use this to pursue sex with women from marginalized castes — who have historically been sexualized but deemed to be “unmarriageable”.

The law, then, is a tricky one that walks the line between criminalizing a widespread phenomenon that takes place within a patriarchal context, and also being forward-looking about how society should be instead. In other words, while linking sex to marriage to understand consent may seem outdated, it is still necessary to do so within a context that allows individuals to exercise patriarchal power over women using this link. The present judgment then stands to erode some of these protections while also, simultaneously, undermining the primacy of marriage in sex — a desirable goal in the long term.

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Written By Rohitha Naraharisetty

Rohitha Naraharisetty is an Associate Editor at The Swaddle. Previously, she was a freelance writer and independent researcher working in the intersection of gender, social movements, and international relations. She can be found on Instagram at @rohitha_97 or on Twitter at @romimacaronii.

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