No means no, is the latest catch line that is trending, following the murder of two women on two successive days in Delhi by stalkers whom they had spurned, as well as the release of the movie Pink, in which three women are traumatised for daring to say `no’ to men.
Every woman will empathise with that line – women who have been stalked after they have rebuffed unwanted suitors, women who have been abused in public because they objected to being groped, women who have ended relationships but find their ex harassing them, women refusing sex to their husbands, women who are forced into repeated pregnancies because the husband or in-laws want a son, women who are forced to abort female foetuses. The list could go on. The fact that no means no is now becoming an acceptable phrase takes a huge burden off women’s minds.
It may seem like the wrong time to bring this up, it may even seem to be a bit of a stretch, but even as we all uphold a woman’s right of refusal, we are ignoring another trend – that of women refusing to accept that a relationship has ended. Men in such denial flirt with the law – they stalk the woman, they harass her and even kill her. Women use a law as their weapon – they complain about rape on the false promise of marriage. Section 375(4) of the Indian Penal Code states that consent for sex obtained under a false pretext amounts to rape – a false promise of marriage comes under this rubric.
So there are a growing number of cases where women who have been in long term relationships with men – sometimes living together for years – filing cases of rape when the man calls it quits.
Sure, there may be need for a provision like Section 375(4). Sex obtained using false pretences is an offence in quite a few other countries. Sometimes coercion need not be physical. Photographs of a consensual act can be used to blackmail a woman into a prolonged sexual relationship. That, too, is the use of force.
Some years back, the story of a councillor in Maharashtra who repeatedly raped a young girl who had sought his help to get a ration card hit the headlines. That too is taking advantage of someone’s vulnerability.
But blackmail is different from blandishment. When a woman gives in to a blandishment – a job, a promotion, a role in a film, marriage – she has exercised a choice in the hope of a future gain. She continues voluntarily in that sexual relationship as long as the gain is in sight. If that gain doesn’t materialise, it was a wrong choice on her part. That is a case of cheating; making it a case of rape trivialises the latter offence.
The false-promise-of-marriage-ground is particularly problematic at a time when women are saying their right of refusal has to be respected. In quite of few of the stalking cases that turned macabre, the man and woman were in a relationship – it is not clear if it was sexual or not. The woman chose to walk out, for various reasons, and the man refused to accept her refusal.
In a majority of the cases of rape on the false promise of marriage, the couple have been in a sexual relationship, sometimes for years. Sometimes they have also been living together. The man then chooses to end the relationship for various reasons. The woman refuses to accept it and files a rape case. Why is this less condemnable than a stalking case? Why is this not a case of a woman refusing to accept a no?
For argument’s sake, let us accept that a rape charge may be valid in a case where a fiancé has put pressure on a woman to get intimate and then backed out of the marriage. Or where a man has promised to marry a woman, had sex with her and then refused. There is a grey area about consent there. But when a promise of marriage is held out over years, can it be argued that there was coercion or that the consent is not valid?
The courts haven’t helped very much, giving conflicting judgements on the matter. Some courts have not accepted this ground, others have. In 2013, the Supreme Court convicted a man from Muzzafarnagar of rape because he had an affair with a woman for two years and got her pregnant.
The Court’s observations are disconcerting: “He thus invaded her person by indulging in sexual intercourse with her in order to appease his lust, all the time knowing that he would not marry her. He committed an act of brazen fraud leading her to believe that he would marry her.” Doesn’t it amount to saying that a sexual relationship is okay only if marriage is the ultimate objective? And that once a sexual relationship has been established, it has to result in marriage?
The woman in the Muzzararnagar case, it can be argued, may not have been aware enough to have given informed consent. But what of this assistant professor from Jawaharlal Nehru University who was living with her student for three years and then filed a rape case after he started prevaricating?
Is filing a rape case to get the man to marry of any use? Consider this case of a woman who complained that a man raped her on the pretext of marriage, got him to marry her and then had to file another case of domestic abuse post marriage.
Invoking the false-promise-of-marriage under Section 375(4) to file rape cases needs a serious re-look for two reasons. One, at a time when rapes are getting increasingly brutal, it ends up trivialising the crime. Two, at a time when women are saying no is no, they need to accept that when a relationship is over, it means it’s over. Just because they have a legal provision that works in their favour, they should not be using it to force someone to continue in a relationship.
This article draws from a blogpost by the author written in 2013.
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