Abolish Section 4 in Indian Rape Law

Marriage is a promise to do and not do certain things.  Whether one realizes it or not, by marrying, one implicitly agrees to thousands of regulations and case law about property division, alimony, child custody, maintenance, “conjugal rights”, bar on sexual intercourse with anyone else, and so on.

Marriage is not just a piece of paper, it is a legally enforceable contract with the modern state especially interested in enforcing it.

In most modern cultural settings, before one decides to commit to getting married, there is a period of courtship and “getting to know each other”.

During that period, depending upon the cultural mores, there is a degree of physical intimacy up to and including sexual intercourse.  Sexual compatibility is considered a major factor in deciding to get married to someone.  In US and most parts of Europe, sex is a natural part of dating.  It is becoming so in urban India as well.

The very purpose of dating and courtship is to determine whether a long-term bond is realizable or not.  That long-term bond may eventuate into a state-sanctioned legal contract (“marriage”) or it may remain informal (a “live-in”).

In recent times in India, there is a growing tendency for grown, literate women (air-hostesses of Mumbai seem to be topping the charts here) to cry “rape” when a man they were involved with refuses to eventually sign the marriage contract.  I call this a travesty.

There are two ways in which a woman can allege rape on a man while having had consensual sex with him:

  1. That he had sex with her by pretending/misrepresenting to be her lawful husband, when in fact he wasn’t.
  2. That he had sex with her by promising that he would marry her.

(1) has been codified into law.  IPC 375 is the Indian law on rape, and section (4) in it states that it is rape when the intercourse happens …

With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be law­fully married.

One must wonder.  Isn’t there something called a proof of marriage?  How can a woman “believe” that she is having sex with her husband when in fact it is not her husband.  If the man merely applied some sindoor on her forehead, or did some ritual at a temple, why doesn’t the woman also insist that they register their marriage in court or with a public authority before she opens her legs?  Is she that dumb that she thinks that law can be circumvented by symbolic gestures.

(2) has been codified into law as well.  IPC 90 states:

A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person.—if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child.—unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.

Let us dwell a little more on this “consent by misconception of fact”.

The Indian High Courts are conflicted on this issue (the Bombay High Court clearly saying it is not rape, with Gujarat High Court recently agreeing), and the Supreme Court of India seems to side with the rape interpretation, while the case law is confusing.

Interpreting a “false promise of marriage” as “rape” is just another nail in the coffin of men’s rights in India.  Of course, the police is only too happy to register such cases and arrest the accused, as they are scared of the wrath of the feminist NGOs in case they refuse.

In my opinion, it is rape only if the raped person was coerced, intimidated or drugged.  Inducing wistful daydreams, promises of everlasting love, and suchlike, is the very stuff that romance is made of.  A romance not culminating in a contract is NOT a crime, it is a failure of compatibility, an emotional tragedy, a breaking of hearts, but it is NOT a crime.

If a woman alleges damages (loss of reputation, loss of virginity, pregnancy, etc.), then there are two questions to be asked:

  1. Assuming the age of consent is not an issue, whether the sex was consensual.
  2. Whether the sexual partners knew that the legal contract of marriage had not been signed yet.  That is, there was no misconception that the marriage of some sort (say, at a temple) had already taken place.

If these two conditions are satisfied, then there is neither cheating, nor rape, nor can there be any question of exploitation.

If the first condition is not satisfied, it is rape.  If the second condition is not satisfied, then it is cheating.

If the woman is indeed wanting to protect her reputation and virginity, then let her withhold physical intimacy till the man signs the contract.  If she is unwilling to get pregnant, let her use the pill or insist on safe sex.

If she is an adult, she should know the consequences of her actions and the law should not become a white-knight excusing her own culpability in the matter.

On the other hand, if she is not to be treated as an adult, then how can anyone even marry her?  Then, she must be considered developmentally challenged, and treated at an appropriate facility.  If she is an adult, then she, and the concerned police officials, must be tried for harassment and for making a false complaint.

A marriage is a promise.  There cannot be a promise to make a promise.  It is not a breach of contract to not sign a contract.  It is as simple as that.

Thousands of young men of India are being imprisoned due to these two laws.  It is high time these laws were more widely known..


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