Indian Rape Law Offers Desperate Last Resort
NEW DELHI—It wasn't going to be a fancy wedding, just a civil ceremony at the courthouse. Still, Rajni Gautam was elated finally to be marrying the man she loved—and the father of her unborn child.
The groom failed to show, however. Ms. Gautam says she phoned him, and her heart sank. "I heard the sound of a train."
Her husband-to-be had taken off.
So later that week, Ms. Gautam says, she did the only thing a woman in her position could do: She filed a rape complaint against him.
"I didn't have any other option," says Ms. Gautam, who is 26, and who was two months pregnant when this happened late last year. She hoped to force him to come back and go through with the marriage.
Across India, police and women's advocates say they are dealing with a flood of rape complaints like Ms. Gautam's. No one keeps a tally, but the cases are common enough that police in the capital city of New Delhi have a special term for them: "false promise" complaints, referring to men who promise marriage in hopes of persuading a woman to agree to sex.
Young women in India are gaining far greater social freedoms—to work, to study, to date—than in the past. However, for large parts of the population, tradition still holds that premarital sex is an absolute no-no with harsh consequences. Pregnant, unmarried women in particular may suffer ostracism from families, a sole avenue for support, as well as harassment.
Paradoxically, filing a rape complaint to try to secure a marriage is one of the few tools these women have to achieve social acceptance. Interviews nationwide with more than two dozen law-enforcement officials, lawyers and women's advocates, as well as women who themselves used India's rape law this way, suggest the practice is relatively common. And it is legal, as courts have ruled.
"If the girl has conceived, then the boy must go for marriage," says Bahar U. Barqi, a New Delhi lawyer who this year represented a man accused of making false promises to obtain sex. "Her image in the society is more vulnerable than a man's."
India this year is in the throes of a profound self-examination regarding the status of women, prompted by the gang rape and murder of a 23-year-old physiotherapy student on a New Delhi bus that led to the conviction of four men on rape, murder and kidnapping charges, among others. The case ended a taboo on public discussion of sexual violence.
Since then, many horrific assaults have made headlines, including the alleged gang rape of a 5-year-old in Delhi, a case that remains before the courts. In recent weeks a top Indian journalist came under investigation for allegedly sexually assaulting an employee. He says he is innocent.
"False promise" complaints are a different phenomenon. They typically don't involve allegations of violence. They differ from date rape or marital rape—situations in which a woman is sexually assaulted by an intimate partner. Indian law doesn't recognize rape within marriage unless the woman is younger than 15.
False-promise allegations often don't involve a single sexual incident, but rather the contention that all of the sex within a relationship was actually rape, because consent was gained using deception.
The cases reflect an important truth about the place of women here: Across wide swaths of Indian society, women known to have had sexual relations or to have given birth out of wedlock can face extreme stigma and have almost no good options.
Courts have started to recognize this vulnerability.
A "live-in or marriage-like relationship is neither a crime nor a sin though socially unacceptable in this country," India's Supreme Court said in a judgment this week in the case of an unmarried woman seeking financial support from a man she had lived with. When a relationship breaks down, "the woman invariably is the sufferer," the court said.
Several Supreme Court rulings have held that consenting to sex "under a misconception of fact"—including an insincere marriage proposal—isn't actually consent. This past May, India's Supreme Court issued a ruling that says, "Such a physical relationship would be tantamount to committing rape."
It is difficult to find precise records on these cases. A senior official at the Delhi Commission on Women, which tracks sex crimes, said that false-promise cases account for about a quarter of the average 250 cases a month that the police refer to nonprofit counseling centers.
A review of one Delhi police district's reports shows that, of 200 referrals to the agency in the first 10 months of the year, 111 were rape complaints, 48 of which involved adult women. About half of those involved couples in long-term relationships, the report noted, in some cases living together.
In Mumbai, lawyer Flavia Agnes, who works with rape survivors, says, "I would roughly put it that one-third of total cases recorded as rape belong in this category."
False-promise cases make it harder for women to win convictions in other kinds of rape and sexual-violence cases, prosecutors say. "If the girl is 18 years [or older], some of the courts would think, 'Oh, she was a consenting party,'" says B.S. Joon, director of Delhi's public prosecution agency.
In addition, in some conservative communities, a woman who has been raped may feel pressure to marry her attacker because her relatives fear no one else will want her. The fact that rape complaints against some men get dropped when they marry their accusers instills confidence in other suspects to offer marriage as a bargaining chip, lawyers and police say.
Ms. Gautam's wedding was set for Dec. 18, 2012. When she phoned her fleeing fiancé, Chandra Bhushan, and reached him on the train, he told her that he was bound for his parents' house in another state.
She says she told him: "You are ruining two lives," referring to herself and the baby she carried.
Mr. Bhushan, 33, confirms failing to show up, saying he faced heavy family pressure not to wed Ms. Gautam. "There are a lot of expectations on sons," he says. But Mr. Bhushan says he always intended to return and marry her.
Soon after Mr. Bhushan left her, Ms. Gautam says, she swallowed a dozen sleeping pills in an attempt to commit suicide. Her younger sister, Bobby, says she saw the empty medicine bottle and took Ms. Gautam to the hospital.
"I had read about cases like this in the papers," says Bobby, who is 18 and studying to join the police herself. At that time—coincidentally, just days after the Dec. 16 gang rape on the New Delhi bus—Bobby says she was feeling angry about the treatment of women.
She says she learned in school that there is no advantage in being passive. "A girl who was sweet and innocent would get harassed more," she says.
Ms. Gautam was persuaded by her sister not to accept Mr. Bhushan's departure. "He never thought I would go to the police," says Ms. Gautam. "I wanted to show him I wasn't powerless."
Ms. Gautam's case was assigned to Pinki Rana, a 24-year-old investigator with the Delhi Police. Since she completed her field training last December, the majority of the sex-crimes complaints she has dealt with have involved women who, she says, allege they were "tricked into bed by men they trusted, men who promised marriage and who fled."
For instance, Ms. Rana says, of 17 rape cases she handled in the first half of this year, about a dozen were filed by women against their boyfriends. It can be "very, very confusing," she says. Generally, she says, in those cases, the woman's goal is to get the man to marry her, not to win a conviction.
Some women's rights groups say they believe such cases are on the rise because men and women socialize more freely in urban areas, where they are often far from family and freed from many of the stricter traditional constraints of village life.
"It is increasing. Every year it is increasing," says K.C. Rosakkutty, chairwoman of the Kerala Women's Commission, a government agency in the southern state of Kerala. It was less common before, she says, "because the girls were not as willing to go with the men as they are now."
In another false-promise case this year, Rashmi, a 26-year-old architect in Delhi, filed a rape complaint against her longtime boyfriend, Alok, 31, in January to press him to marry her. He agreed. The two wed in February and now have a baby daughter.
The pair spoke on the condition that their surnames not be used.
Alok, who was represented in his case by the lawyer Mr. Barqi, says he and Rashmi met five years ago working in a Delhi office. When colleagues ordered pizza and veggie burgers for lunch, Alok and Rashmi would chat. He remembers thinking, "This is not wrong. We can't be as narrow-minded as our parents."
Says Rashmi: "I didn't plan to fall in love." But "he was so decent…he treated everyone the same, with respect."
When Alok asked his parents about marrying Rashmi, he says, they disapproved. They said he needed a wife who understood the customs and spoke the dialect of their village, and would take care of them. Last year, his parents arranged for Alok to be engaged to a local woman.
Even so, Alok kept seeing Rashmi. In January, she found she was pregnant. She began calling Alok repeatedly, pressing him to marry her. When he was reluctant, she went to the police.
As Ms. Rosakutty of the Kerala Women's Commission puts it, when a man leaves the relationship, the woman is always the loser. "She will be marked," she says.
Like Rashmi, Ms. Gautam says she was desperate to avoid that fate—for the second time in her life.
When she was 21, living on her own in Delhi and studying to be an accountant, she dated a water-filter salesman. After she became pregnant with his baby, she says she discovered he was already married. She decided to raise the child on her own.
As an unwed mother, Ms. Gautam says, she received unwelcome attention from men. "They proposition you," she says. "They try to take advantage."
Eventually she and Mr. Bhushan, who lived nearby after coming to the city to study chartered accounting, became romantically involved. Mr. Bhushan helped look after Ms. Gautam's daughter, she says. Her daughter's birthday falls in October, as does Mr. Bhushan's, so they began celebrating together.
When Ms. Gautam became pregnant again, Mr. Bhushan at first suggested an abortion. "At that point, because my family wasn't letting me marry her, I thought that was the only way to protect her," says Mr. Bhushan.
Ms. Gautam refused, and Mr. Bhushan agreed to disobey his parents and wed her, she says. But on the wedding day, he got cold feet.
Ms. Rana, the police inspector on the case, says that, after hearing the details, she felt strongly that Ms. Gautam had been wronged. "If the police don't help, the life of a pregnant woman, of her child, would be ruined," says Ms. Rana. "What kind of life would she have?"
The inspector traced Mr. Bhushan's phone, questioned his family members, and tracked him down in neighboring Nepal. He returned to India and was jailed for two months as prosecutors weighed filing charges against him.
Indian law covering rape, although overhauled earlier this year following the Delhi gang rape, is complicated by language inherited from the 19th century. Back then, it was more common for a woman never to have seen her husband before her wedding night. Thus, the law protects women from being tricked into sex by a man masquerading as her husband.
Some police officers cite this section of the law as the basis for registering a false-promise complaint.
Specifically, the law says that if a woman consents to sex with a man "because she believes that he is another man to whom she is or believes herself to be lawfully married," the man misleading her is guilty of rape.
Some courts are questioning or trying to more narrowly define these legal grounds. In the May Supreme Court ruling, the judge also said that a man who intended to marry a woman and became sexually involved, but later changed his mind because of "unavoidable circumstances," shouldn't be guilty of rape.
In October, a New Delhi trial-court judge acquitted a man of a rape charge, finding that sex between him and his partner was consensual.
"Of late this court has experienced a trend where the girl says that the boy took her to a room, applied vermilion on her forehead, put garland around her neck and declared that they are now husband and wife," Judge Virender Bhatt wrote in his verdict, referring to rituals that form part of some Hindu marriage ceremonies. "Then they indulge in sexual intercourse with each other, with the consent of the girl and later on the girl alleges rape on the false assurance of marriage. This is a very disturbing trend."
The judge didn't respond to requests for comment.
Mr. Bhushan says that after he met Ms. Gautam seven years ago, his feelings for her quickly reached an "extreme level." They started dating in 2010, he says, but for the first two years he kept it secret from his parents.
When he did tell them, he says, they reacted "very badly." They had previously told him that he would be "eligible" for marriage after finishing his accounting degree, a profession chosen for Mr. Bhushan by his father, he says.
"Observing their reaction, I began plowing their way," he says.
Women sometimes condemn themselves for premarital sex, according to one former rape counselor who worked in Ms. Rana's police station. The counselor, Shikha, who goes by a single name, described the case of a woman seeking police help to marry her boyfriend—even though the man had struck her. The counselor says she asked the woman if it would be better to make a fresh start. The woman responded: "I've had sex with him. Now if I have sex with some other man, how would I be different from a prostitute?"
After Mr. Bhushan's arrest earlier this year, his lawyer filed a court affidavit that his client was ready to marry Ms. Gautam, according to the police. In February, a High Court judge granted temporary bail so that Mr. Bhushan and Ms. Gautam could wed.
The two tied the knot in March. Ms. Gautam now goes by Mrs. Bhushan. She had her baby, a second daughter, in June.
In August, Mr. Bhushan appeared before Delhi High Court Justice Hima Kohli, asking her to quash the criminal complaint filed by his wife. Mrs. Bhushan stood beside him, holding their child.
"In view of the fact that since the parties have got married, the present petition is allowed," the judge wrote in her order ending the case.
This year alone, court records show that Justice Kohli has heard more than 20 requests to quash rape cases centered on men accused of reneging on their marriage promises. Half the requests were granted because weddings had taken place. Others were deferred until the court received confirmation of the marriage, or that the woman was being well treated in her married home. Justice Kohli didn't respond to interview requests.
Mrs. Bhushan says her own marriage "wouldn't have happened" if she hadn't gone to the police. She says she was determined that her daughters not grow up without a father. Her older daughter now calls Mr. Bhushan "papa."
Mr. Bhushan says his father hasn't reconciled himself to the marriage, but that his mother has offered "emotional support." None of his relatives came for the birth of their child, he says.
Mr. Bhushan says he loves his daughter, and that he would have married Mrs. Bhushan even without police intervention.
But, he says, he hasn't come to terms yet with disappointing his parents, or with losing his standing in his home village, where he used to be known as a local boy who made good in the big city.
"Now, who will take me as a role model?" he says. "They will say he got married and he didn't even take his parents' permission."