A Kerala High Court judgment - sexist by all means - has nonetheless thrown open a debate on whether the "promise of marriage" being broken is grounds for a rape charge.

In January this year, the court, while hearing an appeal by a 31-year-old man who was found guilty of rape by a lower court, said that he could not be charged with rape for giving a false promise of marriage to get into a physical relationship with a 27-year-old woman.

The court claimed that the relationship was consensual, even as it set the context in extremely problematic, patriarchal terms. “She had an illicit affair with the accused, and as part of this affair and unholy union, she had sexual intercourse with him on many occasions,” the court said.

"Even a common lady or an uneducated lady cannot be deceived more than once or twice on a promise of marriage. PW1 is a well educated lady having a degree in Engineering. It is quite unbelievable that she could be easily deceived on a marriage promise on many occasions. Admittedly, three or four such instances were at her residence, when her parents were away. Much probe is not required in this case to find that the sexual intercourse which the prosecutrix had with the accused on many occasions at her house was with her consent," reads the six-page judgement by Judge P Ubaid and accessed by LiveLaw.

There are many problematic statements here. Firstly, the judgment is clearly based on the judge’s opinion that pre-marital sex is “illicit.” Secondly, it presumes that a person in a relationship cannot be raped multiple times.

Bengaluru-based women's rights activist Brinda Adige lashed out at the court for having made such a derogatory remark, and called the verdict "sexist and "one-sided."

"In what way did it become illicit? Nowhere in my Constitution does it say that it is wrong to have premarital sex. When it does not deter me from that, it does not become illicit,” Brinda pointed out.

Rape or not rape

But does breaking the “promise of marriage” constitute rape?

“I will definitely not call it rape, but we cannot ignore the fact that the woman has been exploited nonetheless,” said Divya Divakaran, vice president of Women Integration N Growth Through Sports (WINGS), a Thrissur based organisation.

While saying that the court was right to distinguish between consensual sex and rape, Divya made the point about criminalising marital rape.

“In this case, like the court observed, both the parties willingly got into a physical relationship. Consent is the key word here, rape does not cease to be rape just because it happens in the confines of marriage,” she said.

Social activist and founder of Anweshi, an NGO for the welfare of women, K Ajitha too, feels that in a consensual relationship, both the man and the woman are equally responsible for their actions.

“One party cannot later cry foul saying that it was not consensual. A discord between the two later in life, does not change the fact that they were in a consensual relationship. There is definitely an element of cheating involved, but not rape,” she said.

On the other hand, some activists have questioned the very meaning of consent in such situations. Deedi Damodaran, a scriptwriter and activist based in Kerala, feels that a woman’s consent is always ‘manufactured’ considering the heavily patriarchal nature of our society. “Look at any Indian movie, the woman will invariably say no to the man’s sexual advances, which people read as her modesty. Our society’s belief is that every action done to a woman is done with her consent,” she says.

Divya adds that women have been conditioned to believe that they are the ones who end up “losing” if they get into a physical relationship with a man before marriage.

“But it is important to look at the circumstances under which one party went back on their word. Probably they developed ideological differences and one party wanted to get out of the relationship. It is just unfair to then allege rape,” Divya points out.

However, activist Brinda Adige disagrees.

“The judge has taken into consideration only one side of the agreement between the two. It’s an emotional issue…at the point of time, the man promised marriage to the woman and therefore, him retracting on his words is rape. We cannot always look at rape as violent, it is not like that. The judge has taken the matter out of context and has put the complete onus on the woman, saying that the physical relationship was consensual. But what about the contract? There was a verbal contract that he would marry her. Where is the onus on the man who made the promise?” Brinda asks.

Brinda says that a woman has been conditioned from a young age to believe that marriage is a very sacred and only acceptable institution, that gives a woman prestige, respect and dignity.

"And that is what we have to break and challenge. At no point did the judge question the man for making the promise of marriage. He promised only to get the consent out of the woman because he knows how the society will see it,” Brinda says.

“It is power that manufactures consent, this is the oldest theory in the book. We make people say that slavery is pleasure. For a woman, her ‘no’ becomes her consent. The same society will also point fingers at a woman who does not give her consent to social norms. That’s exactly why the film Pink becomes relevant, that it brought to the fore, the fact that a woman’s no means a definite no,” Deedi says.