Every time a court orders a person accused of rape to marry his victim as a condition for bail, many eyebrows are raised and fingers are pointed at the judiciary. We quickly judge the judge, while losing faith in the law. Protesters hit the streets demanding the removal of that judge, and social media is flooded with angry reactions.
But there is a context behind each of these rulings and it is related to the way rape is defined under the law.
As outrageous as it may sound, it is in the intricate differences in facts and circumstances of cases that the judges are compelled to make counterintuitive decisions to uphold justice and fairness.
One may ask how voluntarily putting the victim into the hands of her rapist is just in any way or wonder if this would give him the license to rape her all her life? While rape is unquestionably a sickening crime, it can also sometimes be used as a weapon against a man. Whether true or false, the allegation itself is so grave that the alleged offender has to bear the stigma all their lives.
Nowadays, 'physical relationship under the false promise of marriage' is classified as rape. There are many occasions when a consensual sexual encounter between couples turns to rape when there is a falling out between the parties involved. Hence before blaming our criminal justice system or judges, we must look at the established laws and how several judgments tried to tackle this ensuing problem.
Section 375 of Penal Code 1860 defines rape as follows– "A man is said to commit rape who has sexual intercourse with a woman under circumstances falling under five descriptions." One of these descriptions includes, "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 definition has also been incorporated in the Nari o Shishu Nirjatan Daman Ain 2000 with an extended explanation. Among other explanations, it includes "a man is said to have committed rape if he enters into a sexual relationship with women aged more than sixteen with consent obtained fraudulently by him."
The above sections are what allow a flood of rape claims. Allegations of rape under 'false promise of marriage' are based on these two sections, even when both the scenarios suggest consensual sexual intercourse.
In most of the reported cases, both the victim and alleged offender are usually in a romantic relationship and disagreement over marriage often leads to the woman lodging complaint of rape. In multiple cases, laws have tried to clear out the confusion between what is rape and what is not.
In a case reported in 68 DLR (2016) 185, the High Court Division held that "if a full-grown girl consents to the act of sexual intercourse on the promise of marriage and continues to indulge in such activity, the same cannot be taken as rape".
In another case reported in 61 DLR 505, the High Court Division ruled that "the unfortunate mature girl mixed with appellant consciously at her own peril and this appellant, though knew the fate of the victim girl, took that opportunity of free consent and mixing which does not fall within the purview of any legal action".
In the 69 DLR 235 reported case, the Court held that "only one party of the two contributing to the amicable act cannot be stamped to have committed an offence of rape".
According to 34 DLR (1982) 366 reported case, the Court held that "the accused would convince the woman that they are legally married and upon that belief, she would establish a sexual relationship with the accused. The accused would clearly know from the beginning that they were, in fact, not legally married at the time of the event. Knowing the truth, he still makes her believe that they were and has sexual intercourse with her. The complainant must prove that no marriage was solemnised between them. Just by promising someone of marriage does not give the impression on the mind of the victim that they are legally married to the accused."
One landmark decision given by the Bombay High Court was that "if a woman is educated and above 18 years of age and yet does not exercise her right to say 'no' to a sexual relationship, then she cannot later allege rape when the relationship turns sour."
Therefore, the term 'rape' used in such situations does not classify as rape, to begin with. It is far from the actual offence, which is heinous, shameful and degrading. If a judge orders something similar in an actual rape case, that should be a matter of real concern. But the definition and characteristics of these two offences are poles apart.
The judges who order the accused to marry their victim in such 'rape' cases are simply compelling them to execute the promises they made to their partners. To do so, judges promise the accused bail in exchange for them marrying. It is just like the judge ordering the performance of a contract after a breach of promise.
In the existing criminal justice system of Bangladesh, a person charged with rape does not have any opportunity to evade liability even after getting married to his victim.
Therefore, the alleged 'rapist' who committed the offence of fraud would eventually have to fight his way out of prison. Although not expressly provided in any of our statutes, multiple case laws have created precedence for the courts to distinguish between rape and the false promise of marriage. It is imperative to do so, otherwise, unfairness will prevail.
Barrister Aiman R Khan is an associate advocate of Rahman Law Associates and Company
Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions and views of The Business Standard.