Consent, Conjugality and Crime: Hegemonic Constructions of Rape Laws in India

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. These cases represent a significant proportion of rape cases in the legal system but remain under-researched. Drawing from postcolonial feminism and intersectionality theory, this article provides a socio-legal exposition 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 and 2016. It is found that courts propagate a heteronormative, intracaste, intracommunal construction of marriage while enforcing seemingly neutral rape laws. Given the prejudicial application of law, it is concluded that the use of criminal law in promise to marry cases is inappropriate.

A Dynamic Theory of Prosecutorial Roles in Adversarial Trials

“…This prosecutor deliberately refrained from engaging in advocacy in promise to marry cases, since he understood these allegations to be generally false. However, his 60 For an analysis of the scope and enforcement of these laws, see Garg (2019).…”

“…Further, there is ongoing debate about whether rape laws should include promise to marry cases (Garg, 2019). Many prosecutors criticized existing laws for being overinclusive and this made them unwilling to advocate for a conviction in promise to marry cases.…”

A critical analysis of the standard of consent in rape law in India

“…Multiple scholars have noted how the credibility of Dalit victims becomes the first hurdle to clear before they could seek justice for their violation (Kumar 2021, Wadekar 2021). 7 Judges tend to have developed certain parameters which if not attributed to the victim could result in denial of their experience of violation (Garg 2019).…”