Consent, Conjugality and Crime: Hegemonic Constructions of Rape Laws in India
| Published date | 01 December 2019 |
| Author | Arushi Garg |
| DOI | 10.1177/0964663918808069 |
| Date | 01 December 2019 |
| Subject Matter | Articles |
Article
Consent, Conjugality
and Crime: Hegemonic
Constructions of Rape
Laws in India
Arushi Garg
University of Oxford, UK
Abstract
‘Promise to marry cases’ are those in which a victim is deceived into having sex with the
defendant, based on a dishonest promise of marriage. Rape laws in India are designed to
punish such defendants. Thesecases represent a significantproportion of rape cases in the
legal system but remain under-researched. Drawing from postcolonial feminism and
intersectionality theory, this article provides a socio-legalexposition of ‘promise to marry’
cases. This analysis is based on the total population of judgments in promise to marry
cases, which were issued by Delhi trial courts from January to June in 2014 and2016. It is
found that courtspropagate a heteronormative,intracaste, intracommunalconstruction of
marriage while enforcing seemingly neutral rape laws. Given the prejudicial application of
law, it is concludedthat the use of criminal law in promiseto marry cases is inappropriate.
Keywords
Consent, deception, intersectionality, India, marriage, postcolonial feminism, rape
Legal understandings of rape are deeply influencedby socio-economic power structures.
Since the 1980s, a particularly contentious area of Indian law is the criminalization of the
defendant in ‘promise to marry’ cases as a rapist. In these cases, the victim is deceived
into having sex with the defendant, based on an insincere or dishonest (‘false’
1
) promise
of marriage. Unsurprisingly,‘men’s rights activists’ describe these cases as ‘relationships
gone sour’ or ‘false rape cases’ (Pandey, 2017). Yet, some feminist lawyers and activists
have also challenged the ideathat such conduct should be punishable as rape, highlighting
Corresponding author:
Arushi Garg, St Hilda’s College, University of Oxford, Oxford OX1 2JD, UK.
Email: arushi.garg@law.ox.ac.uk
Social & Legal Studies
2019, Vol. 28(6) 737–754
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DOI: 10.1177/0964663918808069
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that this might feed into patriarchal conceptions of marriageas the only legitimate site for
sexual expression (Johari, 2014). These conversations have saturated media coverage
about rape prosecutions in India, but no academic study has yet focussed on this area.
By drawing on postcolonial feminism and intersectionality, this article provides a socio-
legal analysis of trial court judgments in ‘promise to marry’ cases in India.
Postcolonial feminism highlights that the scope and operation of law assumes fixed
gendered, racial, religious, linguistic and other social hierarchies (Deckha, 2015: 177;
Kapur, 2003: 6; Sa’ar, 2005: 683). It excavates, critiques and challenges these assump-
tions. By focussing on multiple oppressions, it exists in sharp contrast with strands of
‘dominance’ or ‘radical’ feminism that are premised on a strict ‘structure of male
domination and female subordination in the context of sexuality’ (Kapur, 2015: 23).
Radical feminism highlights the universality of violence against women and uses this
violence as an ‘equalizer’ to bring together women from various political and historical
contexts (Kapur, 2015: 30). This serves to effaces the differences in the social position of
different women, since an acknowledgment of these differences could irretrievably
fragment feminism (Stewart, 1995: 271). It also heightens the emphasis on women’s
victimization, rather than their agency (Kapur, 2001). Postcolonial feminism shifts the
conversation since it ‘integrates multiple differences into its analysis when examining
the dynamics of cultural Othering’ (Deckha, 2015: 179; also see Boyd and Parkes, 2017:
739). By challenging stereotypical, monolithic and essentialist constructions of ‘third
world’ women as victims of their culture (Kapur, 2002: 6; Pande, 2015), postcolonial
feminism speaks directly to its twin framework, intersectionality theory (Deckha, 2015:
179). Emerging from Black feminist thought, intersectionality theory suggests that
human experience is a product of co njoined and intersecting pattern s of oppression
(Crenshaw, 1991: 1243). While gender is one aspect of this experience, gender intersects
with class, caste, religion, disability, race and many other attributes to produce unique
forms of discrimination (Atrey, 2015: 1516). Drawing from these theories, this article
exposes the manner in which seemingly neutral rape laws are implemented to sustain a
range of existent social stratifications. It argues that the rape prosecutions in promise to
marry cases draw from and reinforce a particular construction of marriage, as a conser-
vative, patriarchal, heteronormative, intracaste, intracommuna l institution. They pre-
sume, universalize and naturalize the proposition that sexual relationships are
legitimate only when they are carried out within the bounds of such a marriage. This
idea of marriage serves to solidify social hierarchies through the control of bloodlines.
This contribution is timely. There is a burgeoning body of literature that asks the
normative question of how sexual consent ought to relate to deception, but it uses a
philosophical or doctrinal lens, rather than viewing the law in context (e.g. Gross, 2007;
Herring, 2005, 2007; Laird, 2014; Sharpe, 2014, 2016; Williams, 2008). Further, most
of the existent work is anchored in jurisdictions outside South Asia. This is important,
since the types of deceptions that are prosecuted are closely linked to social norms that
define the limits of acceptable sex – a theme drawn out later in this article. Within South
Asia, scholarship on this topic has called for greater clarity in dealing with cases of
sexual deceit (Bronitt and Mishra, 2014: 47). Other writers have focussed on the theo-
retical underpinnings of prosecutions and verdicts in these cases. For instance, Sakhrani
has suggested that judicial reasoning in promise to marry cases is heavily steeped in
738 Social & Legal Studies 28(6)
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