Consent, promise of marriage and power imbalances in Keerthy-Tovino starrer Vaashi
Spoiler alert: This is not a review. It contains spoilers including a discussion on the ending of the film Vaashi. If you haven't watched the film and don't like to read spoilers before watching, please don't read ahead.
Gautham Ganesh may well be from a “reputed family”, “highly qualified”, and may have “never committed any offence”, as his lawyer Madhavi Mohan puts it, but he is on trial for the charge of rape under pretext of marriage. The complainant, Anusha Shivakumar, is Gautham’s colleague, who used to assist him at the architectural firm in which he worked. It is a classic case of he-said-she-said. Anusha says she fell in love with him, and alleges that he has always behaved as if those feelings were mutual. He knew very well from the outset that she was not interested in a casual fling, she says. Gautham asserts that they were just close friends, and that he has only interacted with her in the same manner as he did with others. “When she has never even expressed her feelings to me, how can she say that I promised to marry her,” he asks.
The incident of contention took place one night at Gautham’s apartment, where Anusha had arrived with another colleague for an official matter. After the third person left, one thing led to another, and the two had sex. It was only on the next day, after they woke up, that Anusha realised he had no plans to marry her. She broke down, tried to convince him, gave him a tight slap, and walked out of the apartment. “But is it my fault alone that all this happened that night? If I knew she expected me to marry her, I wouldn’t have gotten into all this,” Gautham later tells his lawyer. Anusha, meanwhile, stands by her statement that if she had known he had no intention of marrying her, she would not have had a physical relationship with him.
Whoever is at fault here, the consequences were dire. Anusha attempted suicide at her hostel, but was luckily spotted by Saira, her roommate and Gautham’s college friend who had put the duo in touch in the first place. It is at this point that Anusha’s father decides to file a case in court, and the legal battle that subsequently ensues is at the core of the recent Malayalam film Vaashi, starring Keerthy Suresh, Tovino Thomas, and directed by Vishnu Raghav. The film brings back to spotlight one of the most divisive aspects of India’s rape-related laws — does sex on the false promise of marriage amount to rape?
Consent in complex relationships
Section 90 of the Indian Penal Code (IPC) defines consent in sexual relationships as one that is fully informed, and given without any misconception about the circumstances in which a sexual act is taking place. As the Section makes clear, “a consent is not such a consent as intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception”.
Read this with Section 375(4) of the IPC, which states that a man has committed rape if he is found to have had sexual intercourse with a woman “with her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married”. This means that if a person had consented to the act solely under the assumption that they would eventually be married to their partner as promised, this is conditional consent. If it later turns out that the promise of marriage made by the partner in this scenario was false, the consent too is invalid, because the condition under which the person had consented was based on deception. This interpretation of the law is essentially broadening the idea of consent, by recognising the unequal social consequences that premarital sex places upon the woman in a heterosexual relationship in the Indian cultural context.
This need not be seen from a moralistic point of view, says professor Deepa Srinivas, former director of the Centre for Women’s Studies, University of Hyderabad. “If an unmarried woman consents to having premarital sex with a man without the promise of marriage, it is an informed choice that she is making. But if the man is deceptively promising marriage to a woman just to have sex with her, then there is definitely an element of exploitation there beyond the morality of it. A marriage could mean many things to a woman, including security. She would be the one to face the backlash and any other consequence that might follow premarital sex. So if she is consenting to intercourse because of that promise, it is an entirely conditional consent,” she explains.
Court judgments across India on the subject, however, have been as varied as they come. As recently as on July 27, the Supreme Court had dismissed a petition alleging rape due to a false promise of marriage. The bench, in this case, had distinguished between a false promise and one that was made in “good faith” at the time of making it, but could not subsequently be fulfilled. “The parties chose to have [a] physical relationship without marriage for a considerable period of time. For some reason, the parties fell apart. It can happen both before or after marriage,” the bench observed. On July 8, the Kerala High Court had also stated in an order that “a subsequent refusal to marry or a failure to lead the relationship into a marriage are not actors … sufficient to constitute rape, even if the partners had indulged in a physical relationship”.
In December 2013, a Delhi trial court order had controversially referred to premarital sex as “immoral and against the teachings of every religion”, before going on to state that sex on the promise of marriage was not rape. “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,” the order had stated. But just about a month before that, the Supreme Court had awarded life imprisonment to a man by stating that having sex under the false promise of marriage amounted to rape. “He brazenly raped her for two years or more giving her the false assurance that he would marry her, and as a consequence she became pregnant,” stated the apex court order, while reversing an Allahabad High Court order acquitting the accused.
Advocate Harikrishnan V points out that these variations in judgments, however, cannot be generalised, as they vary based on the circumstances of each case and the background of the victim as well as the accused, among several other factors.
The power imbalance aspect
“A relationship between two adults can turn sour anytime. All of those cases cannot be categorised under Section 376 [punishment for rape]. This is where the social status of the victim becomes important. If the said relationship concerns two individuals who are similarly placed in terms of their education, income, caste and other sociological factors, many courts have refused to identify the sexual acts within these relationships as rape on pretext of marriage. On the other hand, if the victim in the case is of a lower social standing while considering the aforementioned aspects, then the question that arises is if she was lured into consenting to sex with the promise of matrimony,” Harikrishnan explains.
In the case of Gautham and Anusha in Vaashi, there exists a clear case of power imbalance, an important factor that goes unexplored in the film. Gautham is Anusha’s senior at their firm, and several dialogues in the film indicate that he might also have been the person who hired her. This leaves space for the film to address subjects ranging from the ab initio element (whether the accused had the intention of deceiving the complainant ‘from the beginning’) to the Prevention of Sexual Harassment at the Workplace (PoSH) Act.
“This is definitely a limitation of the film. Unfortunately even within the lawyer community, there are not many people who are aware of the PoSH Act or the need for an Internal Complaints Committee in every workplace. The fact that the accused stands at the position of a dominant authority to the complainant is a relevant factor here,” says the lawyer.
The ‘Indian woman’ experience
The fact that the woman attempts suicide is an important matter that the court will take into consideration here, says Harikrishnan. “This is clearly the first time she has engaged in sexual intercourse. And when she talks about marriage after that, this man brushes it away. Consequently, she tries to take her own life. Culturally, we see the sexual dignity or privacy of an Indian woman as very important. In fact, there are many judgments that cite the dignity of the ‘Bharatiya naari’ (Indian woman) as a crucial element of the case. So from this context, the court can observe that the woman was pushed to suicide because she lent her heart to this person, solely under the assumption that he intends to marry her,” he says.
The subsequent conduct of the victim is of significance in the case, Harikrishnan adds. “In contemporary society, however, it is rare to see a woman of education and a relatively privileged social standing [like in the film] to be pushed to this juncture. But it is all subjective, and as I said, varies on a case to case basis.”
‘Gift’ as promise of marriage
In the film, Madhavi points out that her client had never told Anusha out loud that he would marry her, nor has he proposed to her. Prosecutor Ebin Mathew (played by Tovino Thomas), however, cites a birthday gift Gautham gave to Anusha as the evidence for the allegation that the accused had promised to marry the complainant. “Gifting a saree is considered as a promise of marriage in our culture. Or, this gift was at least intended to make her believe so. From this, it is evident that the accused was deliberately trying to mislead her,” Ebin says in court, adding that this made Section 417 of IPC [punishment for cheating], read with 415 [cheating], valid in the case.
Besides, according to another witness Vimal, the third colleague who had accompanied Anusha to the accused’s apartment on the said night, there were rumours in the workplace that Gautham and Anusha were in love. “The duo was always seen together in the office, even during breaks. People have spotted them together even on holidays,” he says. Even though the company has a cab service, Gautham used to drop Anusha back home at night, he adds. While these may seem as mere gossip as Madhavi says, Ebin argues that it is this conduct of the accused that may have essentially misled the complainant into believing he wanted to marry her.
Eventually, the judge (Ramesh Kottayam) in Vaashi indeed rules in favour of the woman in the film — a script decision that comes as a surprise to the cynical viewer. According to Harikrishnan, however, in a real court, it would be difficult to prove the allegation beyond reasonable doubt using the evidence presented in the film. “Considering how complex this issue is, it would be difficult for this case to hold ground in court with this evidence. There are no overt acts they are using to substantiate the argument that he had promised to marry her. While conduct of the accused is admissible as evidence, that too has its flaws. For instance, just because two people travelled in a car together, it doesn’t mean that they are in love or are going to get married,” he points out.
That is not to say that the case would not have gone in favour of Anusha in real life. “Ultimately, it depends on the judge and their thought process,” Harikrishnan says. Vaashi too takes a moment to emphasise this in one of its final scenes, zooming in on a family photo of the judge (Ramesh Kottayam) with his daughter in it — an indication that there could be factors beyond mere evidence that had influenced his verdict in favour of the woman in the equation.
As professor Deepa puts it, Vaashi would have turned out to be a superior visual text if it had addressed more nuanced aspects of this relationship, such as the power imbalance between them. “But in the end, if these complex debates are happening in popular culture, it is an excellent step in the right direction.”