
I remember on my first visit to India being struck by the seeming chaos of everyday life in the towns and cities. Creative traffic rules, along with much beeping of horns ruled on the roads, cows wandered freely in the middle of roads, their Hindu sacredness hopefully protecting them from harm. Occasionally naked and ash-covered sadhus were seen communing with their God amidst the urban commuters and street kids. Western hippies in the 70s (and beyond) were drawn to the rawness of everyday life, the reliance on karma and God, seeming tolerance of difference and freely available drugs – as an antidote to the rational, industrial, sterile and suffocating West.
But this apparent anarchy belies the very conservative underpinnings of Indian society, particularly when it comes to women and how they should behave. Despite Bollywood more recently showing on-screen kissing and live-in relationships (such as Nikhil and Ambar in
Salaam Namaste), notions of family honour and shame are still prevalent and pre-marital sex very much frowned on.
On 6 January this year, it was widely reported that a judge in a Delhi court ruled that sex between two adults on the promise of marriage did not amount to rape
[1]. Apparently a man, employed in a multinational company had been accused of rape after his female partner had sex with him after he promised marriage.
Judge Virendar Bhat was quoted as saying,
‘In my opinion, every act of sexual intercourse between two adults on the assurance of promise of marriage does not become rape, if the assurance or promise is not fulfilled later on by the boy…..When a grown up, educated and office-going woman subjects herself to sexual intercourse with a friend or colleague on the latter’s promise that he would marry her, she does so at her own peril. She must be taken to understand the consequences of her act and must know that there is no guarantee that the boy would fulfil his promise.’
‘He may or may not do so. She must understand that she is engaging in an act which not only is immoral but also against the tenets of every religion. No religion in the world allows pre-marital sex’.
[2]This needs some explaining, particularly to a Western audience where pre-marital sex is normal. No of course it is not rape, I am thinking. Rape is where sex, or forced penetration of an object into an orifice, is done without consent - or so you would think.

In India, however, these cases are known as ‘false-promise’ cases, which reflect the social stigma that exists – mainly for women – of pre-marital sex. Typically in these cases, a woman enters into a sexual relationship with a man if he promises to marry her. If he then later reneges on this promise and doesn’t marry her, she can then accuse him of rape – on the basis that her consent to sex was gained using deception. Several Indian Supreme Court rulings have held that consenting to sex ‘under a misconception of fact’ (such as an insincere marriage proposal) would constitute rape
[3]. To try to avoid the stigma then of having had pre-marital sex, particularly if pregnant, the main tool the woman has is to file an allegation of rape to force her male partner to come back and marry her
[4].
One reported example is the case of Rashmi, an architect and her long-term boyfriend Alok. They had met 5 years previously while working in a Delhi office. Alok’s family, however, wanted him to marry a local village girl and disapproved of him marrying Rashmi. When Rashmi found she was pregnant, she pressured him to marry her – to avoid the stigma of having a child out of wedlock. When he refused, she filed a rape complaint against him. The strategy worked and they eventually got married – against Alok’s parent’s wishes - and now have a baby daughter
[5].
As sexual relationships outside marriage become increasingly common – particularly in urban areas – allegations of ‘false-promise’ rape have also increased. It is now the leading category of rape in Maharashtra – with a 15.8% increase in cases filed in 2013 from the previous year
[6].
The case law in India on sexual relationship and rape seems to be increasingly confused – probably reflecting the friction between traditional conservative values and the more secular westernised values found in the larger cities such as Delhi and Mumbai. Inevitably the West is blamed for this cultural shift, with a Delhi court last year saying live-in relationships were immoral and an ‘infamous product of Western culture’
[7].
From a Western liberal standpoint, I have to agree with Judge Bhat in that pre-marital sex between two adults does not amount to rape if a promise of marriage is not fulfilled, even if his language is somewhat patriarchal and old-fashioned. In the judgment he talks about a ‘grown up, educated and office-going woman’ ‘
subjecting herself ‘(my italics) to sexual intercourse, and doing so ‘at her own peril’. It is a shame if the woman really does ‘subject herself’ to anything, rather than having a sexual relationship based on freely given consent, as an expression of love and for the mutual enjoyment of both parties – as I (perhaps old-fashionedly) still tend to think. Within marriage or not.
But Judge Bhat is wrong to say that pre-marital sex is ‘against the tenets of every religion’. In a previous case, the actress Kushboo was accused of outraging public decency by saying in a 2005 interview that it was not wrong for women to have pre-marital sex as long as they took precautions
[8]. In that case, the Indian Supreme Court endorsed the right of unmarried couples to live together, stating, ‘When two adult people want to live together, what is the offence?.....Living together is not an offence. Living together is a right to life’
[9]. They also pointed out that even Hindu Gods Lord Krishna and Radha were co-habiting lovers – forming a precedent even within Hinduism.
Buddhism also has little to say specifically about sex outside marriage. Whilst Buddhist monks and nuns tend to be celibate, for lay Buddhists the main ethical guideline is the third precept, to ‘refrain from sexual misconduct’ – or in its positive form, to cultivate ‘stillness, simplicity and contentment’. These are not commandments, but ethical guidelines. Buddhists tend to interpret this as trying to act in a kind and loving way to any sexual partner – whether inside or outside marriage – with no specific guidelines on marriage or not (a contract, not a sacrament, in Buddhism).
Furthermore, to espouse principles of morality based on religion also ignores the increasing number of atheists, agnostics and non-religious who follow secular guidelines. The Indian state itself is secular and surely judges are there to interpret and apply the law (which hopefully is based on morality) rather than issuing moral guidelines and appealing to religious codes of behaviour?
The more of these contradictory judgments that come from Indian courts, the more confusing the legal and ethical guidelines seem to be. For recent cases, we now have, in summary:
- The case involving Kushboo in 2010 where a Supreme Court upheld that it was not an offence to live together before marriage and that it was not the job of the criminal law to punish those expressing unpopular views
- The case of Aysha v Ozir Hassan in 2013 where the Madras High Court held that all sexual relationships were in the nature of a marriage and carried the consequences of a marriage (see my blog about this case here).
- The Supreme Court judgment in December 2013 overturning a 2009 Delhi High Court ruling, and re-criminalising homosexual sex (see my blog about this case here)
- Then this latest ruling saying that pre-marital sex is ‘immoral’ and against the ‘tenets of every religion’ but does not necessarily amount to rape (based on a false promise).
The one glaring omission in Indian legislation is that rape within marriage is still legal, on the basis that the woman (and presumably the man) have given their consent to sex on marriage – seemingly at any time, coerced or not, whether she feels like it or not. Who on earth would agree to such a distorted marriage contract on that basis? - that in doing so, you give up completely your control over your own body and when, where and how you have sex? Anecdotally, you come across some horror stories of how some Indian brides are treated by husbands who think they ‘own’ their wives bodies by virtue of her being financially dependent on him.
In India, therefore, it seems now that consensual pre-marital sex may be rape if based on a false promise – but not always, and may be immoral or not - depending on which court you believe. Pre-marital sex may also give rise to a marriage-type relationship, with all the associated rights and responsibilities - again depending on the court. Consensual homosexual sex was a criminal act until 2009, then wasn't but now is again. But forced non-consensual sex within marriage cannot be rape – and is not only legitimised but also not immoral as it is within marriage. There is no logic.
[4] This is a very different situation from laws elsewhere – such as in Morocco – where a male rapist can escape prosecution by marrying his victim, to protect her family’s ‘honour’. This was recently highlighted in the suicide of 16 year old Amina al-Filali in Morocco, 7 months after she had been forced to marry her rapist.
[6] The Times of India, 18 Nov 2013
[7] BBC News India, 6 Jan 2014
[8] BBC News, 24 March 2010