- Anmol Kohli*
Introduction
Sections 493 and 496 of the Indian Penal Code, 1860 (‘IPC’), respectively involving deceitful inducement to sex or cohabitation under the belief of marriage, and an intentional fake marriage, are overshadowed by the more popular “offences against marriage”. Consequently, while bigamy and adultery have vast literature on their decriminalisation, these offences do not. In this article, I argue that these offences should be reconceptualised and placed in other Chapters of the IPC. Chapter XX which deals with offences related to marriage should, therefore, cease to exist. Offences against marriage are problematic as they ignore the possibility of similar offences in other serious relationships that may not comply with heteronormative norms. Currently, criminal law ignores non-marital relationships, hence depriving victims in such relationships of adequate protection. This article, however, only addresses non-marital heterosexual relationships. Reconceptualising these offences through the lens of sexual autonomy allows for a future extension of these offences to all serious relationships.
Firstly, I argue that offences under Section 493[1] involving sex (I refer to this as Section 493(A)) should be reconceptualised as a type of “rape by deception of relationship”. This shifts the focus of criminal sanction from the protection of marriage to that of sexual autonomy, allowing for similar violations of sexual autonomy in other deceptive relationships to also be criminalised as rape. Secondly, I argue that offences under Section 493 involving cohabitation (I refer to this as Section 493(B)) and those under Section 496[2] should be treated as aggravated forms of cheating causing reputational and emotional harm. This involves an interpretation of the harm principle that accounts for major reputational and emotional harms, along with violations of marital autonomy. This reconceptualisation allows for the possibility of future amendments that treat all serious relationships equally and do not provide a special status to marriage. Hence, offences similar to Section 493(B) and Section 496 that do not involve marriage, which are currently not protected by criminal law, would then be criminalised as aggravated cheating.
I. Section 493(A): Deceptive Marital Rape
In this section, I argue that Section 493(A) does not belong in Chapter XX. Instead, it is rape. Given the differences of the offence compared to other forms of rape, however, it would require a separate section in the IPC.
Section 493(A) involves deceitfully inducing an incorrect belief in lawful marriage and having sex in said belief. Once this incorrect belief is induced, however, the victim has a misconception of fact. This damages any consent given by her, following Section 90.[3] Consequently, Section 493(A) involves non-consensual sex. Not all non-consensual sex is (currently) rape.[4] As per Jed Rubenfeld, this proves that rape law does not protect sexual autonomy.[5] He rejects “rape by deception” as even trivial deceptions, allegedly inherent in sex, violates sexual autonomy.[6] However, I argue that the possibility of trivial deceptions should not deter the categorisation of grave deceptions as rape. Autonomies are, on the whole, protected even if trivial encroachments are not criminalised.[7] Similarly, sexual autonomy in Section 493(A) may be subjected to a test of the gravity of deception to realistically protect it.[8]
It is undoubtable that Section 493(A) would pass any such test. A belief in marriage is a life-changing fact. It cannot be equated with trivial lies. Women in some sections of Indian society, having internalised conservative norms, consider marriage as a precondition to sex.[9] The patriarchal and coercive nature of marital relations in Indian society is best exemplified by the marital rape exception.[10] Here, marriage is unfortunately considered to create in law a “continuing consent” to sex.[11] The offender in Section 493(A) induces this belief. By deception, he can practice coercive rape allowed by law, where the victim has no other choice.[12] This emphasis on the importance of marriage should not preclude extending this offence to other serious relationships. The prevalent belief in the importance of marriage is only an example of serious deceptions. Offenders may lie about other aspects which are considered important by a victim in non-marital relationships. This would ultimately be a subjective consideration, depending on the facts of every case.
Section 493(A) is, at its core, the offence of cheating.[13] Yet reducing it to cheating would ignore serious harm to sexual autonomy, reputation, and the mental health of the victim.[14] These considerations should be relevant in a debate on criminalisation and sentencing. A sentence of 1 year or fine, given under Section 415, is not sufficient for Section 493(A). Nor are the prolonged sentences possible for rape under Section 376 desirable in all cases. The offence seemingly falls under Section 375 secondly.[15] However, I argue that it may not be treated under the same. This is because rape by deception would be considered a “lesser” encroachment on sexual autonomy[16] than other forms of rape following the standards typically adopted in rape adjudication. These standards erroneously emphasise on force as an indicator of lack of consent, and consider the previous relationship of the victim to the offender as implying a lower standard of consent. An example of the usage of these standards is the Farooqui [17] judgment.
Firstly, the woman consents to sex with the offender. The deception about her relationship with the offender damages this consent ex post facto. This is still, however, better than no consent at all, as it is considered as causing less mental harm in rape adjudication, though the same may be subjective in reality.[18] One may rightly respond that flawed consent is no consent.[19] This would be true for placing an offence within rape. When it comes to sentencing, however, the circumstantial evidence concerning whether consent was obtained at the time of the act and the victim’s relationship with the offender should be considered. A drawback of this argument is its reliance on existing standards of rape adjudication. However, the same would be preferable over not considering offences under Section 493(A) to be rape at all, which is the current situation.
Secondly, rape by deception has lesser culpability.[20] Richard Posner argues that the wrong here is in the lies, and not the “invasion of bodily integrity”.[21] However, this creates a distinction between mind and body for an offence that is inseparably committed against both.[22] Once the lie is realised, bodily integrity has also been invaded as sexual autonomy involves both mind and body.[23] Nonetheless, this is a different kind of invasion than other forms of rape which do not involve deception of relationship status in the inducement of sex.[24] In some of these rapes, victims are subjected to invasion when they simultaneously recognise it as such. In others, like S.300 fourthly, there is deception in the act itself, as the victim believed they were having sex with “another man” who was their husband.[25] These make the act of rape likely to be more traumatic for victims, increasing the culpability of the rapist.[26] However, a possible exception to this is where reflection on the prolonged deception leads to increased trauma for the victim.[27] Treating these rapes on par with rape by deception in the inducement of sex under Section 493(A), beyond the exception mentioned above, violates the principle that sentences should be proportional to harm and culpability.[28]
For Section 493, there is a policy objective for limiting fake marriages and protecting women who do not possess knowledge of essential marital ceremonies. More importantly, however, the violation of sexual autonomy in Section 493(A) is culpable due to this falsely-induced belief in marriage. The discretion in sentencing may be guided by the societal circumstances of the victim to gauge the reputational harm caused by the offender, along with emotional harm to the victim.[29] Reputational harm is only relevant if they can lead to tangible losses in the victim’s lived experience.
The underwhelming treatment of rape by the deception of marriage in Western scholarship reflects a post - sexual revolution society where a belief in lawful marriage is no longer decisive, or even relevant, to consent.[30] In India, however, women in many sections of society may consider the legality of their marriage as relevant to consent. Correspondingly, the equation in the culpability of rape by deception with other forms of rape reflects a society considering all extramarital rape “defilement”.[31] In this section, I have attempted to find a mean between these viewpoints to protect sexual autonomy. Shifting the focus of Section 493(A) to sexual autonomy also allows it to be amended to include all serious relationships from the perspective of the victim.
II. Sections 493(B) and 496: Aggravated Cheating & Reputational Harm
I refer to instances of Section 493 involving only cohabitation as Section 493(B). Sections 493(B) and 496 do not involve sex. While Section 496 is an intentional fake marriage, Section 493(B) involves such fake marriage with cohabitation. These offences are, by virtue of their placement in Chapter XX, offences against the marital institution.[32] In this section, I argue that both of these offences can be reconceptualised as aggravated cheating causing reputational and emotional harm. Further, these offences violate marital autonomy, which is an example of the autonomy to choose one’s relationship status with a partner. Currently, the purpose of criminalising these offences is that they are an “offence against marriage”. However, they can instead be conceptualised as offences that cause reputational and emotional harm, and which violate marital autonomy. This reconceptualisation allows for future amendments where violations of autonomy in all serious relationships would be relevant for criminalisation, thus taking away the special status provided to marital relationships in law.
Section 493(B) can also fall within simple cheating.[33] Section 420[34] provides for an aggravated form of cheating with delivery of property by the cheated individual. I suggest that a similar section be introduced for instances that currently fall under Section 493(B). Here, the offender induces the victim to cohabit with them through the belief in lawful marriage. A similar logic can apply under Section 496. Here, the offender dishonestly induces the victim to go through a fake marriage ceremony. If the victim knew that the ceremony did not create a lawful marriage, they would not participate in the same. These are serious violations of the victim’s marital autonomy.[35] Beyond violating marital autonomy, these offences create reputational and emotional harm.
The IPC protects reputational harm with criminal sanctions. This is demonstrated by the offence of criminal defamation.[36] Further, the definition of injury under the IPC includes reputational harm.[37] Donald Dripps argues that reputational harm is not important enough to be protected by criminal law.[38] This follows the classical enunciation of the harm principle by J.S. Mill, as it is usually interpreted.[39] However, as Mill does not define “harm”, what counts as harm is subject to endless interpretations, many of which differ significantly in their scope. A wide interpretation, given by Jonathan Riley, equates “harm” with any “perceptible damage”.[40] This interpretation, however, does not differentiate criminal sanction from other mechanisms like tort compensation, and may lead to overcriminalisation. Instead, I argue that criminalisation should occur where both “perceptible damage” and violation of autonomy exist. This combines a subjective and objective standard respectively. More importantly, this shifts the focus of criminal sanction from protecting the institution of marriage to a standard that can potentially be used for all relationships considered serious by the victim.
The emotional harm suffered by a victim must come within this “perceptible damage”. This is a purely subjective criterion depending on how the inducement or fake marriage harmed the victim. Further, the perceptible damage of reputational harm is partly subjective as it works off existing societal conditions. This harm arises due to patriarchal understandings of virtue and female sexuality if such understandings are prevalent in the victim’s community. This may vary depending on the victim’s socioeconomic background. If the victim belongs to a socioeconomic background where she would not suffer major reputational harm, her emotional harm would nonetheless be sufficient for criminalising this offence. A drawback of this approach is that existing patriarchal societal standards faced by the victim would have to be taken into account. However, the same is necessary for ascertaining reputational harm.
It follows that Section 493(A), given the same socioeconomic background, incurs greater reputational harm than Section 493(B). The former involves extramarital sex, and therefore, defilement in patriarchal societal standards.[41] Section 493(B), in turn, involves greater reputational harm than Section 496 as the former involves cohabitation. In cases involving Section 496 alone, the victim neither cohabits nor has sex with the offender.[42] She, therefore, retains much of her societal virtue and incurs the least reputational harm. A similar objective calculation cannot apply to emotional harm, which depend entirely on how the victim mentally reacts to their experience.
The reputational harm is tangible due to the real-life consequences that the victim may face. Indian women are often unable to “remarry” after a fake marriage.[43] This is due to a reputational decline in virtue and popular disregard for the illegality of the marriage. Indian men do not face such harm to the same extent as women. This is due to traditions that tacitly accept polygyny and widower remarriage but reject similar practices for women.[44]
Another aspect of these offences is the violation of the victim’s autonomy to decide their relationship with the offender. This also applies to Section 493(A). However, the rape grounds are more obvious and therefore become the first line of argument. In both Sections 493 and 496, the victim has chosen marriage with the offender. To be denied the same via an unlawful marriage violates the victim’s autonomy. This does not mean that a person has the autonomy to marry anyone they like. Marriage, like sex, requires mutual consent.[45] Once the offender grants such consent by going through what has the appearance of a marital ceremony, however, the victim has good grounds to believe in their married status. Once the marriage is understood to be fake, a violation of marital autonomy has been realised.
Protection of marital autonomy should not be conflated with that of the marital institution, which is the aim of Chapter XX. This is because the autonomy to decide one particular relationship status is not being privileged over another. The only criterion for criminalisation is that it should be a serious violation of this autonomy. For example, a fake engagement ceremony would also be such a serious violation. For alternative families that do not comply with heterosexual norms, any indicator of a serious relationship in the community should be considered. Victim testimonies may be relied upon to gauge whether the victim believed that the relationship was serious, irrespective of societal norms that give marriage primacy as a sign of seriousness. This would be a complicated exercise, but would still be preferable to not having such offences criminalised at all. I focus on marital autonomy as the offences considered in this section violate the same. This emphasis on violations of autonomy, instead of the specific protection of marriage alone, is what allows future amendments which can apply this offence to all serious relationships.
Sections 493 and 496, due to their focus on the protection of marriage as opposed to autonomy, portray women as individuals without agency. This is because they do not protect unmarried women in similar situations. They cannot contribute towards a possible reconceptualisation away from marriage as they do not contain any emphasis on violations of autonomy as the purpose of criminalisation. The above argument changes this portrayal into one where autonomy-violations, combined with reputational and emotional harm of women, are protected. It follows that if we reach societal standards where a fake marriage does not cause reputational harm to women, this offence may decrease in gravity. However, emotional harm may still be present, depending on the victim. Violations of marital autonomy alone are not as grave as those of sexual autonomy. Therefore, it is possible that with a decline in reputational harm, the maximum sentence under this offence would decrease. My argument does not apply to those instances of Section 496 where the offence is committed intentionally by both parties. Here, there is no violation of autonomy. All harm is willingly incurred. The only victim is the institution of marriage. This article has proceeded on the assumption that protection of the marital institution is not a sufficient objective for criminalisation. If this institution is not important enough to warrant criminal sanction for its protection, these instances of Section 496 should not be criminalised in any way.
Conclusion
My purpose in this article has been to demonstrate that “offences against marriage” can and should be accommodated in other Chapters of the IPC. Through this, I intend to contribute to the literature arguing that the criminal law does not require offences specially dedicated to the protection of the marital institution. Instead, I have argued in favour of shifting the focus of criminal sanctions to serious autonomy violations and reputational harm, among others. Admittedly, the task of defining “serious” autonomy violations is incomplete. It is established, however, that violations of autonomies relating to one’s person are serious. This categorisation may be driven by the possibility of various physical harm and emotional harm. Harm can be incurred in various relationships equally. Therefore, there is no reason for treating marriage as a special relationship causing greater harm irrespective of societal circumstances.
* Anmol Kohli is a third year student at the National Law School of India University, Bangalore. He would like to thank the SLR Editorial Board 2020-21 for their helpful comments.
References
[1] The Indian Penal Code 1860 (‘IPC’), s 493. Cohabitation caused by a man deceitfully inducing a belief of lawful marriage.—Every man who by deceit causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit or have sexual intercourse with him in that belief, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
[2] IPC, s 496. Marriage ceremony fraudulently gone through without lawful marriage.—Whoever, dishonestly or with a fraudulent intention, goes through the ceremony of being married, knowing that he is not thereby lawfully married, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
[3] IPC, s 90.
[4] For example, see IPC, ss 375 Exception 2, 376B.
[5] Jed Rubenfeld, ‘The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy’ (2013) 122 Yale Law Journal 1372, 1379-1380.
[6] ibid 1410.
[7] Stephen J Schulhofer, Unwanted Sex: The Culture of Intimidation and the Failure of Law (Harvard University Press 1998) 105, 107; Constitution of India 1950, art 19.
[8] Donald A Dripps, ‘Beyond Rape: An Essay on the Difference between the Presence of Force and the Absence of Consent’ (1992) 92(7) Columbia Law Review 1780, 1788.
[9] Poonam Pradhan Saxena, ‘Matrimonial Laws and Gender Justice’ (2003) 45(3) Journal of the Indian Law Institute 335, 351.
[10] IPC, s 375 Exception 2.
[11] Rubenfeld (n 5) 1402.
[12] Michal Buchhandler-Raphael, ‘The Failure of Consent: Re-Conceptualizing Rape as Sexual Abuse of Power’ (2011) 18(1) Michigan Journal of Gender & Law 147, 208-211.
[13] IPC, s 415.
[14] Susan Estrich, ‘Rape’ (1986) 95(6) Yale Law Journal 1087, 1182.
[15] IPC, s 375. Rape.—A man is said to commit “rape” if he— (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:— First.—Against her will. Secondly.—Without her consent. Thirdly.—With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourthly.—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. Fifthly.—With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.—With or without her consent, when she is under eighteen years of age. Seventhly.—When she is unable to communicate consent. Explanation 1.—For the purposes of this section, “vagina” shall also include labia majora. Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exception 1.—A medical procedure or intervention shall not constitute rape. Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.
[16] This encroachment is “lesser” only in legal standards. In reality, encroachments of sexual autonomy are ultimately subjective as they depend on the victim’s experience. However, it must be gauged by some legal standards based on harm and culpability for the purpose of criminalisation. This would necessarily involve abstracting the experiences of the victim, which may not appear satisfactory in all circumstances.
[17] Mahmood Farooqui v. State (Govt of NCT of Delhi) (2017) SCC OnLine Del 6378.
[18] Joel Feinberg, ‘‘Victims’ Excuses: The Case of Fraudulently Procured Consent’ (1986) 96(2) Ethics 330, 339; David Archard, Sexual Consent (Westview Press 1998) 136.
[19] Rubenfeld (n 5) 1376.
[20] John F Decker and Peter G Baroni, ‘“No” Still Means “Yes”: The Failure of the “Non-Consent” Reform Movement in American Rape and Sexual Assault Law’ (2011) 101(4) The Journal of Criminal Law and Criminology 1081, 1132.
[21] Richard A Posner, Sex and Reason (Harvard University Press 1992) 392.
[22] Jane E Larson, ‘“Women Understand so Little, They Call My Good Nature Deceit”: A Feminist Rethinking of Seduction’ (1993) 93(2) Columbia Law Review 374, 420.
[23] Schulhofer (n 7) 111.
[24] Dripps (n 8) 1799.
[25] IPC, s 300(4).
[26] Robin West, ‘Jurisprudence and Gender’ (1988) 55(1) University of Chicago Law Review 1, 59. The same disclaimer stated in an earlier footnote on the subjectivity of victim responses applies here as well.
[27] Avgi Saketopoulou, ‘Using Psychoanalysis to Understand #MeToo Memories’ (The New York Review, 11 October 2018) https://www.nybooks.com/daily/2018/10/11/psychoanalysis-and-metoo-memories/ accessed 30 June 2021.
[28] Andrew Ashworth, ‘Is the Criminal Law a Lost Cause?’ (2000) 116 Law Quarterly Review 225, 241
[29] Dan M Kahan, ‘Culture, Cognition, and Consent: Who Perceives What, and Why, in Acquaintance-Rape Cases’ (2010) 158 University of Pennsylvania Law Review 729, 733.
[30] David P Bryden, ‘Redefining Rape’ (2000) 3(2) Buffalo Criminal Law Review 317, 465-466.
[31] Rubenfeld (n 5) 1388.
[32] Abhinav Sekhri, ‘The Good, The Bad, And The Adulterous: Criminal Law and Adultery In India’ (2014) 10 Socio-Legal Review 47, 50.
[33] IPC, s 415.
[34] IPC, s 420.
[35] Joseph Shine v. Union of India (2019) 3 SCC 39 [169] (Chandrachud J).
[36] IPC, s 499.
[37] IPC, s 44.
[38] Dripps (n 8) 1797.
[39] Piers Norris Turner, ‘“Harm” and Mill’s Harm Principle’ (2014) 124(2) Ethics 299, 300.
[40] Jonathan Riley, Routledge Philosophy Guidebook to Mill on Liberty (Routledge 1998) 98.
[41] Rubenfeld (n 5) 1382.
[42] What is being referred to here is the rare incidence where an offence under Section 496 takes place without an offence under Section 493. A possible example of this situation may be where the woman realises immediately after the marital ceremony that it was not a valid marriage, or is told by someone after the marital ceremony that it was invalid.
[43] Saxena (n 9) 356.
[44] Flavia Agnes, ‘Hindu Men, Monogamy and Uniform Civil Code’ (1995) 30(50) Economic and Political Weekly 3238.
[45] Schulhofer (n 7) 99. While this is legally true, it may not always be followed under the coercive social relations of patriarchal societies.