Interview | Rape Law On Ground Of False Promise Of Marriage Is Highly Archaic: Hemant Batra (Public Policy Advocate)

Rape on Pretext of Marriage Law in India – “There is need for an amendment to legislation, clearly defining what constitutes sexual intercourse on the pretext of a false promise of marriage”, said Orissa High Court in April 2021. 

Can women in failed consensual relationship be armed with a law to fix, threaten or pressurise their ex-partners to marry them?  

Number of rape cases registered under pretext of marriage by a friend or a live-in partner combined with cases filed against separated husband in 2020 are 10,751 which is 38% of the total reported cases in India. This number was 16,311 out of 32,033 i.e 51% of reported rape cases in 2019 and 12,568 out of 33,356 i.e 37.6% of reported rape cases in 2018. Read detailed analysis here. 

We interviewed Mr Hemant Batra, Lawyer, Counsel & Public Policy Advocate on his macro view upon this subject. Here is what he has to say:

Men’s Day Out (MDO): Women often use the word cheating, or getting lured by men into physical relationships who promise them marriage. However, this effectively means that we are enabling women (girlfriends) to pressurise men for marriage using legal force. Your macro opinion on whether any man should be charged with rape, in case he backs out from marriage? 

Hemant Batra (HB): Let me first give you a background and then share my personal views. Penal laws exist to predominantly prevent the commission of offences by penalising the offenders. Such laws in a way empower the victims. But the basic foundation of any offence is that – it is tagged as `alleged’ until proven. In the recent past, we have seen a surge in complaints of rape, criminal intimidation and cheating under various provisions of the IPC based on allegations of rape on the false pretext/promise of marriage. Some contested cases are brought to the courts while at the same time several get resolved at the level of police. The ones, which are resolved get settled by either a somewhat compelled wedlock or some monetary compensation in lieu of the withdrawal of complaint(s). There is a bag of mixed judgements in respect of the contested matters, be it from the Supreme Court or several High Courts. However, one settled principle, which has evolved from such judgements is that the `breach of promise’ has to be established unambiguously and explicitly. The courts have even gone to the extent of observing that even a promise genuinely made could get altered during a relationship based on changing circumstances.  

Now, my macro-opinion on this aspect or issue is that a man ought not to be charged with rape, in case he backs out from marriage. Because logically when two adults are involved in any relationship of personal and physical nature including consensual sex, that can not be a cause of grievance inter-se. A `consensual’ physical relationship involves all human senses. This whole premise of rape being alleged on the ground of false promise of marriage is highly archaic. The law must evolve with the changing times and needs of society in the same way as the penal laws of homosexuality and adultery got struck down. Today, parents encourage their adult children to have a longish courtship/engagement before marriage to ensure sustainable compatibility both mental and physical. Live-in relationships have been granted legitimacy even by the courts. Recently Allahabad High Court ruled that Live-in relationships are part and parcel of life and have constitutional protection. My considered view is that there must be a robust assumption regarding consent between two adults in a mutual relationship, engaged in sexual activity. Hence, it should not be seen as a viable possibility for a case of rape to be made out.

MDO: On one hand, most equal rights champions fight for sexual autonomy of women, but on other hand, they want to penalise Men if they back out from marriage after consensual sex. Your take?

HB: I feel that propagating and amplifying the concept of charging a man for rape on the specific ground of breach of marriage promise, portrays the complainant woman in a very gullible light. Women are equally wise, sensible, prudent, and mature, if not more than men. Getting fooled into a relationship and then consensual sex on the pretext of marriage is something that doesn’t go hand in hand with the fight for the sexual autonomy of women.

I may also like to remind the said champions that it is a myth that women are more virtuous than men when it comes to sex. Researches have revealed that women desire casual sex just as much as men and were as likely as males to have sex with a stranger, as long as it was in a safe environment.

MDO: In August this year, Madhya Pradesh HC denied bail to a man (boyfriend) citing “India is a conservative society, women don’t indulge in sex without assurance of marriage”. What is the message given here by the honourable high court, especially when women today are at par with men in almost every sphere of society?

Unfortunately, a Bombay or Delhi High Court would have reviewed this case in a different manner, as time and again they have rejected the charges of rape in such cases. Your analysis whether law and implementation is totally dependent on the mindset of judges and locations they belong to…

HB: I think the MP High Court erred in applying its mind while denying the bail because it got influenced by a couple of clouded assumptions. The Judge believed that ordinarily, a woman wouldn’t engage in a sexual relationship unless she had belief in the marriage with the man with whom she had sex. He assumed it wrong. He failed to appreciate that a woman could also have a desire for sexual interaction with any person of her liking, not necessarily the one with whom she may want to have a long-term relationship. Her suicide attempt further clouded the Judge’s mind. The circumstances surrounding an attempt of committing suicide relate to one’s mental state and surrounding circumstances. The court completely misread the situation and perhaps got influenced by sentiments and personal moral beliefs, which should have had no bearing on the outcome of the case.

Even Allahabad High Court recently observed that it was expedient for the legislature to provide a clear and specific legal framework to deal with the cases where the accused obtained consent for sexual intercourse on the false promise of marriage. The Court believed that it was `becoming a phenomenon that the accused makes a false promise of marriage with the mala fide intention to deceive the victim… these cases are increasing day by day as the accused persons believe that they will escape from the criminal liability and punishment by taking advantage of law’.

However, at the same time, Delhi and Bombay High Courts being cosmopolitan city courts have been seen to be more progressive, logical and liberal in their approaches in such matters.

I am quite surprised that message sent across by the Supreme Court through its judgments, where they have emphatically held that every breach of promise to marry doesn’t mean rape, hasn’t spread well.

And, why there is some inconsistency amongst High Courts is because I always maintain that law is what a Judge thinks on a particular day.

MDO: Is this law defeating the purpose of justice to real rape victims? Are these cases wasting precious time of courts, because some women want to merely settle scores with Men who refused them marriage?

HB: So long, some new explanations, exceptions and provisos are not added to Sections 375, 376, 417, 420 etc of the IPC thereby clarifying the stringent ingredients for filing, investigating, charging, trying and establishing alleged offences of the sort that we are discussing herein, the law will defeat the purpose of justice. Innocents may get harassed, humiliated, tortured, and even sentenced, while the real perpetrators and wrongdoers may escape. Also, thankfully some High Courts have started initiating prosecution against bogus victims for perjury etc. This trend must become more substantial to discourage coercive complaints with malicious agendas.

MDO: Whether these cases can also qualify as cheating, because when Genders are reversed, there are no such implications for girlfriends who dump Men after dating them for months/years?

HB: It amazes me when people refer to women collectively as a `weaker sex’. Conceivably, even the lawmakers and jurists took that expression literally and all the laws concerning victimisation be it personal, physical or pecuniary started to lean in favour of women. Society expects women to even behave as persons lacking in physical strength. All this did more harm than good to the women race. For ages, women started to believe that they were subordinates of men, and dependent on them for their survival. With that inculcated came the laws and naturally, women thought these were their tools of empowerment. However, today, I am sure most women would want not to be seen and considered as weaklings or underlings.

Men have also been brought up in a society with false notions. A man should not be seen as a victim in a feud with a female, as perceived by our society. He should not have tears in his eyes especially if he has a woman to deal with on the other side. Consequently, one would not imagine many men filing complaints of cheating in a relationship against a woman. Likewise, the police administration also looks down upon a man where he approaches with a victim card. He runs the risk of being ridiculed for not being macho enough. All this approach needs to change.  

MDO: Your Top 3 suggestions on this topic – how can we safeguard interests of women, yet make them accountable as adults responsible for their own choices?

HB: As I mentioned earlier, the system of Live-in relationships should be codified now since it already enjoys legal sanctity, and a sufficient counselling mechanism should be provided therein. However, the exit from the relationship should be straightforward and effortless (post counselling). Secondly, this whole theory of rape on false marriage pretext or promise should be taken out of the ambit of Sections 375, 376, 417 and 420 of IPC. At the most, it could qualify as an offence of domesticated violence or sexual misconduct. A new provision of the law could be framed with a strict framework of prerequisites for an offence to be made out.

Finally, these women rights activists and champions and also Government agencies for women welfare may conduct formal orientation, especially in the rural and semi-urban settings educating young girls and women regarding their legal rights as well impediments and wisdom as to caution and probable outcomes in a pre-marriage relationship.

I will close my interview with a final word of advice to both men and women that – every relationship may not work out into a marriage, and every marriage may not work out into a relationship. Adding an element of criminality in a relationship where the situation doesn’t demand so is like violating your own body and conscience. 

ALSO READ –

Orissa High Court | “Sex On Pretext Of Marriage Is Not Rape” | Bail Granted After Nearly 6-Months Custody

False Marriage Promise Has Always Been Effective Tool Of Mischievous Men To Create Emotional Pressure On Women For Sex

Woman Files Rape On Former Lover After Her Marriage To Another Man Gets Called Off

Supreme Court Acquits Man From Rape Charges After 21-Years | Woman Had Filed Case After Four Years Of Live-In

Married Woman Files Rape Charges On Married Lover For Allegedly Raping Her 15-Years Ago

ALSO WATCH –

Women Are Filing False Rape Cases After Live-in: Chhattisgarh State Commission For Women Chairperson

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