Crime And Context

Context: Investing in understanding harm beyond the penal standard of consent is crucial, especially in a country that denies the existence of intimate partner violence.

Understanding the Phenomenon of “Promise to marry cases”:

• It is a case where sexual violence is brought to light in an intimate partner relationship following the accused’s reneging of the promise to marry. This arises from two situations-

1. 1. Rape is committed, and a promise of marriage is made to restrict the woman from accusing rape and/or extract further sexual intercourse.
   2. Promise itself forms the basis of sexual intercourse in a romantic relationship.

Jurisprudence of “promise to marry” in India

• Favours patriarchal institution of marriage: undermining the women’s agency.
  • In Uday v. State of Karnataka, Supreme Court acquitted accused on the grounds that promises made in love “lose all significance when they are overcome with passion and sexual temptations.
    • It said that Section 90 of the Indian Penal Code (IPC), which vitiates consent obtained under misconception of fact or fraud, does not apply.
  • In Dileep v State of Bihar, SC held that violation of section 90 requires a false promise since inception (means accused never intended to marry the survivor).
    • Distinguished between a breach of promise of marriage and a false promise: by stating that only the latter vitiates consent under Section 90.

Criticism of the above Judicial pronouncements:

• Poor interpretation of consent: by using the language of “love” and “passion”, the court obfuscates the power dynamics in romantic relationships, particularly in inter-caste relationships.
• Advocated caste endogamy: which seems to suggest that women who fail to adhere to caste hierarchies ought to pay the price for it.

Way forward: An expansive definition of consent under criminal law may not successfully address the intricacies of intimate partner violence, given the risks of over-criminalisation and its disparate impact on the marginalised.

• Reconsider and redefine harm beyond a criminal legal determination of consent:
  • Several countries are adopting restorative justice practices.
  • In the Dileep case, despite its problematic reasoning, the court acknowledged the harm caused and held the accused accountable for damages under civil law.