India’s Supreme Court Says Not All Sex With a Failed Promise to Marry Is Rape

In April 2019, the Supreme Court of India (SC) passed a verdict that stated that if a man goes back on his promise to marry a woman, sex between those consenting adults can be considered rape. But clarifying what it actually meant, the SC, on August 21, held that not every failed promise to marry can lead to a rape charge.

The court stated that if the woman continues to have sex with the man despite remaining uncertain that it would lead to marriage, she cannot charge the said man of rape. The court also added that the individual who makes a choice to act after evaluating the actions and their possible consequences, “consents” to such action.

The ruling came when the SC bench comprising Justices DY Chandrachud and Indira Banerjee were hearing a rape case by an assistant commissioner of sales tax, against a deputy commandant of Central Reserve Police Force. The couple was apparently in a relationship for six years and lived in each other’s houses on multiple occasions. The complainant said the accused had sex with her on the promise of marriage but got doubtful about it later because of her caste. The woman went on to file a complaint in 2016 when he told her about his engagement with another woman.

In the light of this case, the SC bench said there’s a difference between a “false promise” and a “breach of a promise”. “Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a misconception of fact that vitiates the woman’s consent,” the bench said, while agreeing to quash the complaint. “On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it.”

The key part in the verdict is understanding “consent” in Section 375 of the Indian Penal Code, which defines rape as a criminal offense. One of the “situations” that amounts to rape in Indian law is: “With her consent but the man knows that he is not her husband and the consent was given because the woman believes that he is the man with whom she is or believes herself to be lawfully married.”

In the past, the Indian courts have seen cases that have involved “breach of promise to marry”, which have led to cases being left to the discretion of judges or evoked concerns over misuse. In 2017, in fact, the Delhi High Court observed that the law is used by women for “vendetta” when relationships sour. While the judicial bodies are trying to make clear demarcations between rape and consensual sex when it comes to false promises of marriage, many Indians believe rape laws should not be used to regulate intimate relationships.

As Mumbai-based lawyer and activist Flavia Agnes explains in The Times of India, we need to take into account cases of those who’re from socially underprivileged backgrounds and are lured into sex on false promises of marriage and then dumped as soon as they get pregnant. And one way ahead would be to make a separate section in the rape law for these specific cases to claim damages, maintenance or future security of children.

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