Priyanka’s story was the talk of the town after she stormed into the wedding of her ex-boyfriend in Bangalore recently. A three-month pregnant Priyanka alleges that V. Anand, a contractor, reneged on his promise to marry her. “We were going around for the last four years, and it was only recently that I consented to a physical relationship with him. In fact, he wanted me to get pregnant because he said that that would force his parents to give their consent to our marriage,” she says.

The Bangalore police arrested Anand under the Indian Penal Code (IPC), Sections 493 (cohabiting with a woman with the false promise of marriage in future), 417 and 420 (cheating). But 23-year-old Priyanka says that Anand should be tried for rape. “I am going through the same trauma as a rape victim. So he deserves to be tried as a rapist,” she says.

But should a man who has got a woman’s consent for sex under false pretences (in this case, the promise of marriage) be tried under the rape law? The Supreme Court has taken varying positions on the issue from time to time. Some years ago, in the case of Preeti Jain vs Madhur Bhandarkar, it was alleged that the film director had got Jain to have sex with him with the false promise of giving her a role in a movie. Jain had wanted Bhandarkar to be tried under the rape law. A Mumbai court held recently that Bhandarkar would in fact be tried on rape charges.

The circumstances under which consensual sex is considered a “rape” under Section 375 of the IPC is 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.” Section 90 of the IPC lays down that consent for sex given “under fear of injury, or under a misconception of fact” is not valid.

The problem arises because determining whether or not there has been a “misconception of fact” in consensual sex is tricky. The Supreme Court too has said that in such cases the “circumstances” should be taken into account carefully before reaching a conclusion. “Each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary or was given under a misconception of fact,” ruled the bench of Arijit Pasayat and D.K. Jain in the Pradeep Kumar vs Bihar case in 2007. The accused had appealed against a Patna High Court order which found him guilty of rape when he refused to marry a girl after having consensual sex with her. The Supreme Court had ruled in his favour. Yet, in another similar case four years earlier, the apex court had found the accused guilty of rape.

This is why women’s activists and legal experts are calling for a more well-defined law that spells out the circumstances under which consensual sex can be deemed rape. “It’s high time we had a clear and comprehensive law on this. Culprits shouldn’t be allowed to get away because of different interpretations of the law,” says Dr N. Hamsa, executive director, WomenPowerConnect, a coalition of women’s groups.

“The main inadequacy of the law is that there is no specific meaning of ‘consent’. The legislature should amend the law to do away with any ambiguity,” adds Sunanda Bharti, lecturer, law faculty, Delhi University.

“The problem is that the courts are not consistent in their decisions. It has to be understood that most women have consensual sex only when there is an assurance that the man shall be her husband or long term partner,” says Rukmini Sen, lecturer, National University of Juridical Sciences, Calcutta.

Bharti and Sen feel that the government should “stretch” the ambit of rape to include consensual sex based on ‘‘false promise” — whether to marry, to give work in exchange for sex, or any other reason.

“This is because, if we just say that consensual sex based on ‘‘false promise of marriage” is rape, it excludes cases where sex took place upon a promise of providing a break in a movie or provide work in general,” says Bharti.

Sushan Kunjuraman, the lawyer who is fighting the case for Preeti Jain, agrees. The courts should take a look at the “state” of a woman when she gives her consent, she says. “You should see who the dominant party is. My client Preeti Jain wouldn’t have given her consent without Bhandarkar’s assurance of a job. It is a clear case of misconception of fact,” says Kunjuraman.

Of course, some say that there is no need to change the rape laws in our country as they are already “heavily loaded” against the accused. “Changing the law on consent is a minefield. More often than not it is a breach of promise rather than a false promise. That distinction should be made, and the courts have been very conscious of this while deciding a case,” says Shrikant Shivade, the criminal lawyer who is defending Madhur Bhandarkar and Shiney Ahuja, the film star who was charged with raping his maid servant earlier this year.

According to Shivade if the definition of rape is tweaked to include “misconception of fact,” even a prostitute can claim that intercourse was based on the promise of marriage. “Many frivolous complaints of rape will be filed just to extract money or for some other reason. The courts should be allowed to interpret the existing law. Besides, the Supreme Court has been very sensitive towards women in such cases,” insists Shivade.

Not so, say women activists. In fact, one of the main complaints of women’s groups against the courts is that they do not always take a “gender sensitive approach” to cases, and that in the absence of a clear-cut law, women could be at a disadvantage. “Assumptions on consensual sex are made if the woman had sexual relations with other men prior to a particular complaint on rape. These gender-biased assumptions make us wonder if decisions are always made objectively as is claimed, or whether other ‘conservative’ biases about who an ideal Indian woman should be affect the judge’s decision,” says Sen.

That may or may not be true. But few will disagree that there is an urgent need to remove any ambiguity in the law regarding the circumstances where consensual sex may be considered to be rape.