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| Edited By: Anamica Nair |Source: DNA webdesk |Updated: Jan 13, 2015, 10:24 PM IST
On Sunday, the Bombay High Court ruled that consensual sex based on a promise of marriage, cannot be termed as rape in case the promise is not fulfilled. This was in reference to a case filed in July 2014, by a woman who was in a relationship with a married man. Justices Ranjit More and Anuja Prabhudesai, in their judgement ruled against the petitioner who the judges said, “is an adult and well aware that the respondent No.6 (man) is married.”
Although this is not the first time that courts in India have pronounced such a judgement, it comes at a time when the debate about rape cases in the country continues to rage. In May 2013, a 19-year-old woman had made a similar accusation against her then boyfriend, but the Supreme Court ruled against the petitioner, drawing a clear distinction between what qualifies as consent and what doesn’t. The apex court had then said: "Coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused 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 latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise.”
At one level, the operational factor here is consent. On another, it is equating consensual sex with rape. Can consensual sex, where the concerned parties mutually agree to engage in intercourse, even if it is based on the false pretext of marriage, ever be considered at par with a heinous crime where consent is non-existent? Can consensual sex ever be equated with a crime where the intention is to inflict physical and mental injury, where the intention is to deliberately assault the dignity of the victim, where the intention is to traumatise and leave an indelible scar? Note that in India, consent to sex when threatened, or under the influence of drugs, qualifies as rape – but that wasn’t the case here. Yes, the man can be accused of adultery, but not rape.
A sexual act between two consenting adults is just that. It is a mutually agreed upon decision between two people who are aware of their actions, and the consequences that could follow. To equate it with rape in the event the relationship doesn’t materialise in the manner that one may have hoped, or in the event a promise made, turns out to be false or fraudulent, would still be tantamount to trivialising an act that is overtly violent and driven by force, and not consent. The Shakti Mills gangrape in Mumbai, or the tragedy of Nirbhaya in Delhi, are instances of men who had no respect for the notion of consent – their act was intended to be a show of their domination and the victim’s subjugation in the most brutal manner.
Once again, the Supreme Court judgement of May 2013 is relevant in making that distinction. The Supreme Court said: "Rape is the most morally and physically reprehensible crime in a society, as it is an assault on the body, mind and privacy of the victim. While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of the victim. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim, and therefore a rape victim is placed on a higher pedestal than an injured witness. Rape is a crime against the entire society and violates the human rights of the victim."
In the present case, the petitioner was not a victim of force or coercion. She wasn’t preyed upon after getting a chance to refuse. She wasn’t drugged or threatened into having sex. Her actions had her consent. But she made an accusation of rape – it is an accusation that trivialises the crime because it doesn’t respect the distinction between a mutual understanding involving complete acceptance, and an unabashed, brazen, and violent assault that is nothing but a crime deserving the harshest punishment.
The trauma that a rape victim goes through, her integrity and her fight for justice -- everything is questioned when false rape accusations are put forth for a personal vendetta. Rape is a sensitive issue in a country like India where women are raped almost everyday. According to NCRB data, one rape is reported every 15 minutes in India. So terming consensual sex as an act of rape, defeats the law put in place to protect victims. False rape allegations are not just deplorable, but also dangerous as one such case hinders justice for 100 other genuine cases.
