Marriage is a magic moment. Its transformative power can be inferred from the remarks from the bench of the judges, B.V. Nagarathna and Ujjal Bhuyan, in the Supreme Court. The occasion was the bail hearing of a man accused of rape on the basis of a false promise of marriage. In an earlier instance, the court deplored the use of the anti-rape law in such cases. But the comments of the bench regarding physical intimacy before marriage seemed puzzling since live-in relationships are legal in India. The court said that before marriage, two persons are total strangers and that they should not blindly trust anyone until they were married. Unmarried couples should be circumspect with regard to a physical relationship; it was difficult to understand how the woman who had complained of rape could have entered into it. The bench mentioned that the warnings might sound “old-fashioned”: they were apparently necessary. The moral underpinning of the remarks seems inescapable. Can the legal issues raised by the accusation of rape in a destroyed consensual relationship be resolved by conservative expectations of ‘right’ conduct? Social change cannot be denied and the Supreme Court in its wisdom has never done so. Physical relationships between consenting adults before marriage are not questioned legally; they fall under privacy that the Supreme Court interpreted as a part of fundamental rights. A law misapplied need not prompt a step back into a different past.
The premise of the remarks is disturbing too. Is marriage a perfect institution that changes total strangers into intimate companions free to engage in trustful physical intimacy at the waving of a wand? The official statistics of dowry deaths and domestic violence are horrifying enough; these do not include either marital rape — still not against the law on the premise that marriage is a sacred institution — or the thousands of women who endure torture without complaint. Sexual exploitation through deception should be penalised, but can people be asked to refrain from consensual relationships because they may break down and go to court? Divorce cases do, too. It could be asked if in the former cases it is the law against rape that should be used, but that is a different issue. Social change has its own momentum; it is best when legal thinking keeps up.