Boys retracting from marriage is not rape – Court: This decision is not against women, experts said – it is wrong with girls, but it is not rape

If someone refuses to marry after a consensual relationship, then it will not be considered as rape. This comment is from Kerala High Court. A bench of Justice Bechu Kurian Thomas said this during the hearing on the bail of a lawyer arrested on charges of rape. Along with this, bail was also given to the accused.

Will this decision of the court weaken the case of women in such cases, weaken their rights, can there be any misuse of it? To understand this, the team of Woman Bhaskar spoke to the lawyers of Supreme Court, Delhi High Court as well as activists. Know how he sees this decision…

Rape – High Court

The court, in its remarks, said that a sexual relationship between a man and a woman can amount to rape only if it is against his will, or the consent is obtained by coercion or fraud. But if the marriage does not take place after having a sexual relationship between two adults of will, then the matter does not come under the purview of section 376 of the IPC i.e. rape.

In such a case, the court also sees the intent along with the evidence.

We spoke to Supreme Court lawyer Sitwat Nabi on this issue. Sitwat says – The court’s decision is not wrong. But now the dimension of Section 376 of IPC is changing. When two people are in a relationship, there is closeness between them. Promises are also made but sometimes after being together for many years, the relationship falls apart or does not take the shape that they expect. In such a situation, if anyone backs down from the matter of marriage, then there is no charge of rape on him.

Referring to one of her cases, she says- ‘Recently I handled a case, where the girl did a case of rape on the boy who was not married. All the evidence from WhatsApp chat was presented in the court. On seeing the chat, it was revealed that the girl used to decide the date, time and place of her own free will to meet her partner. But if the relationship did not reach the marriage, then the girl filed a case of rape.

Rape charge after breakup is not a crime in any law

Dipika Narayan Bhardwaj, an activist, journalist and documentary filmmaker working for the rights of men, says that at this time some things are happening in the name of rape in India that weakens the status of real rape victims. As women, you and I know what is the crime of rape, sexual assault. What is its effect physically and mentally. If you accuse your partner of rape after being in a physical relationship for years, then it will not be considered rape by any law or social perspective of the world. Earlier in such a case even bail was not available but now it is available. Why? Because many such cases are fake.

Deepika raises the question and says who will decide whether when two people had a relationship for the first time, there was talk of marriage between them or not? Only a woman will speak and she will be accepted?

Many times allegations are made to vent anger

In this case, advocate Kamlesh Kumar of Delhi High Court says that charging of rape after breakup or not fulfilling the promise of marriage is a misuse of section 376 of IPC. Misusing this section is doing wrong to girls who are really rape victims. Kamlesh says that I have seen or handled many such cases, where girls charge for rape out of revenge. Sometimes she does not even come in the trial. Their effort is not to get justice but to take the boy to jail. I think that after being in any relationship, there should be enough understanding and maturity between both the boy and the girl that you can move forward in your life in case of breakup or any promise not fulfilled. The intention of the boy will be seen from the beginning in the angle of fraud.

Cheating in a relationship is not legal but a matter of social and patriarchy

On the decision of the Kerala High Court, feminist writer and AIPWA Secretary Kavita Krishnan says that this decision is correct. But it does not mean that girls are not wrong but they are not raped. Many times boys get married without informing, break the relationship or treat girls unfairly. But cheating in a relationship is not a legal issue but a matter of social and patriarchal perspective.

Are girls in our society unable to move on after a bad relationship, that’s why such cases come to court? In response to this question, Kavita says – It is not that girls do not move on. If you look at the cases of acid attack, then the boys do not move on. There is a feeling of revenge in them. If girls are being cheated in a relationship, then the solution is not to get married or accuse them of rape. There is only one solution to such cases that girls should become strong and they should also get help from the society in this.

In the recent past, such cases of rape have also come to the fore, which have raised many questions…

Girl trapped by rape case on eighth boy

A girl from Gurgaon had lodged a case of rape against 7 boys in different police stations. She used to befriend boys through social media. After being in a relationship for some time, she would press for marriage. Otherwise, a rape case would have been filed. Last year, she started blackmailing the eighth boy Mahesh by pressurizing her to marry him. The boy also got married out of fear. But within ten days left the house due to discord. The girl filed a rape case. When the matter opened, the girl was arrested.

Can a woman not be charged with rape?

Arnab Ganguly case of 2017. Arnab started business in Gurgaon. A married woman from the office filed a rape case against him. After which he was imprisoned for eight months. He was proved innocent after 6 years of legal battle. The two became friends in the office. The woman had said that she would soon divorce her husband and marry Arnab. After this a relationship developed between the two. But later the woman reneged on her promise. When Arnab tried to know the reason, the woman filed a rape case. Arnab had written a letter from PM to the Ministry of Women’s Child and Development raising the question that if a woman comes into a relationship promising to marry a man and later retracts, will a case of rape be filed against the woman?

When we asked this question to Supreme Court lawyer Sitwat, he said that section 376 is not gender neutral. A man cannot sue a woman for rape under any circumstances.

Kerala High Court Comment on Rape and Sexual Assault

Last year, during the hearing of a case, the Kerala High Court had said that penetrating the male private part between the thighs of a girl under Section 375 of the IPC would also amount to rape.

In June 2021, the Kerala High Court had termed the crime of rape as wrong to be associated with only one gender. The court said that if a woman cheats a man by promising marriage, then no action is taken against him, but if the man does so then he can be punished. What kind of law is this? This crime should be gender-neutral. The court made this observation during the hearing of a case of custody of the child of a divorced couple.