Saw a debate raging about whether intercourse with someone by promising marriage to her constitutes rape. I’ve tried to respond to this but I’ll lay it all out again, a bit simply.

There are two things we need to think about before dismissing the claim.

1. Consent in Indian society
2. How we’ve been trained to see rape only as something that involves a clear lack of consent.

Here’s the thing. Men and women in India are treated differently when it comes to consent. When a man says no, everyone agrees. When a woman says no

It is seen as something negotiable. Our society does not have a good relationship with women who say NO. I’ve explored this idea in an oped somewhere using marital rape as an example, and why there’s so much resistance in India against criminalising it.

Now let’s complicate this matter further. We also live in a society where a woman is taught NOT to be sexually active before marriage. She is taught that once she’s married she can do whatever, sexually speaking, with her husband. Meaning that in India even today, women are not

encouraged to seek sexual activity outside of a socially sanctioned and stamped equation with a man. In fact, they are hugely punished through a variety of social mechanisms for doing so.

So let’s go back a bit now,

We now have a society where if a woman says NO, no one really listens. And we have a society where engaging in intercourse as a woman is ok, IF you’re married.

Now how does this connect to rape?

Many men promise to marry women, then have intercourse, and vanish.

The woman is now confused because she thought she was engaging in something socially acceptable (because she thought she was going to marry X or Y), and post hoc the breach of trust combined with the fact that SHE feels she has been violated, gives rise to the diagnosis of the

Situation as one of rape.

The question before us is simple, is the woman right?

This is where we need to drag in the idea I tabled earlier that in India (and globally ) we see rape as a black and white thing. Woman says no, man says “not listening” and rapes her. We get this.

However, let’s turn around a little and assess this from a distance. What if rape isn’t black and white? What if it also occupies the unclear grey zone between consent and lack of it?

What if the women who file these cases based on a breach of promise to marry, are right?

Let me complicate this further. As I said before, there is this problematic relationship with women’s consent in Indian society. Now when a woman is in this situation where someone has said “hey I’ll marry you, do this thing”, and she says yes, what exactly is she agreeing to?

Is she agreeing to sex, or is she agreeing to marry? Because this distinction is important. When she agrees to marry, she is giving consent within a socially sanctioned structure. She thinks that the man is going to be her husband. We don’t know if she’s comfortable with the act

itself. We don’t know whether she is actively consenting or whether she sees this as a duty she has to do because this guy is going to be her husband.

If she sees it as a form of duty, then her consent isn’t active, it’s passive.

But more importantly, filing the case is a way of reclaiming her dignity and holding the man accountable. Even instances of date rape are similar, you make someone feel safe and then take advantage of that space or intoxication or something.

This is very similar to that.

In fact, these breach of marriage promise cases happen quite frequently in India. It’s a ploy to get women to “consent” by using the socially sanctioned idea of marriage. I think it’s devious and I don’t think women should be treated in this manner by anyone.

So ask yourself if you’re being tricked into consenting, are you in fact consenting?

Update: so I’m very glad folks are beginning to turn this issue over in their minds. Thank you!

I didn’t wake up with this thinking one day. It came as a result of work done by nithya and me and several hundred conversations where we spoke at length not about what we think,

But about what the person in that situation thinks. Nithya wrote about this as far back as 2015. As women with agency and some choice it becomes easy to dismiss these cases but all I’m arguing for is a place on the table for some attention to be given to such cases and not to

dismiss them outright as lies.

One chief reason I began thinking about this issue in this specific manner is because of how quickly we call all such women “liars”. Many such women who get trapped in these situations are very young and have no sexual experience.

See if they were promised a job and willingly went with a labor contractor and got sold we would immediately point and say they were victims of trafficking. However they did go quite willingly on false promises of a better life or something.

Think of this promise of marriage as a form of sexual grooming. And also don’t stop asking why no one questions why men do it ? They obviously know how to operate in the grey zone where there is plausible deniability. But if you’re a woman growing up without choice and agency

How will you ever be able to spot that?

Having said this the biggest concern that folks raise is about fake cases. Granted there are fake cases and we can’t deny that. But remember that they are also usually caught and tossed out. Every IPC section has fake cases.