ON June 27 this year, the Supreme Court, while hearing a case filed by a former airline cabin crew member against a top banker, expressed concerns over the recent increase in cases where women had filed complaints of rape against their male partners after their relationship went sour, mostly accusing them of sexual exploitation with the promise of marriage.
“Where is it held that if you had a relationship for two years, it becomes rape when it failed?” the Supreme Court bench had asked while hearing the case where the complainant had alleged that the accused had taken advantage of her for two years and then refused to marry her. The accused was already married and the complainant knew it.
In the last two years, soon after reforms in rape law following the infamous Delhi gangrape, police stations in Mumbai have seen a surge in the number of rape complaints, with more and more women coming forward to lodge a criminal protest. But the most worrying of these for the police are what they call “technical rapes”, which stem from failed relationships. According to police, these are cases where a consensual sexual relationship later turns into a complaint of rape against the man. While officers say it’s impossible to identify them under statistics separately, they claim around 80 per cent of rape cases registered with them are technical in nature.
“Cases involving very young girls are actual rapes, where men force themselves on girls aged ten to twelve years or below. These are mostly perpetrated by men known to the victims, which includes family, family friends, neighbours, teachers and others who come in daily or frequent contact with the victims. Among adult women, there are few cases every year of actual rapes. However, all others are cases of consensual sexual relationship gone wrong later,” says Deputy Commissioner of Police Mahesh Patil, who is also Mumbai police’s spokesperson.
The police officers Newsline spoke to - from investigating officers to regional additional commissioners of police- say these cases too are probed in the same manner to ensure courts take cognisance of the rape sections registered, with equal effort put on a detailed chargesheet in court.
All of the efforts, however, are seldom fruitful as most of these cases fall through either due to lack of enough evidence (most of these cases criminal lawyers say fail the medical test) or because the victim and the complainant either get married or decide to settle the matter amicably, police say.
Mumbai police, which registered the second highest number of rape cases after the national capital in the last three years, have been studying the nature of crimes against women since the 2012 Shakti Mills gangrape. In crime conferences this year, the concerns raised were on the nature of evidence that needs to be collected for such crime complaints, where the witnesses are suspected to back out later.
“During a recent review, I found that of all the 258 cases of rape under review, some 190 cases were of technical nature,” says Mumbai Police Commissioner Rakesh Maria.
The most common kind under this category is the one where a man and a woman, and sometimes a teenage girl, have consensual intercourse more than once over a period of time. In half of these cases, this intercourse happens because the man has promised to marry the girl. According to senior police officers, charges of cheating and fraud are also pressed besides rape charges in such cases.
“The toughest part of investigation in such cases is the medical evidence, which is otherwise regarded to be one of the crucial parts of evidence in rape cases. In a rape case, we subject the victim to medical tests at the Nagpada Police Hospital to confirm assault and test for DNA evidence. In such technical cases, however harsh it may sound, since the consensual intercourse has occurred several times over a period of months or even years, there is no DNA evidence to confirm that the accused named in the FIR is the one who has had intercourse with the woman. We then have to rely on other aspects of investigation, like statements of people who know the couple and were aware of their relationship, and family members of the victim and the accused,” says a senior police officer.
Another officer says securing a conviction in such cases is even harder. “The complainant and the accused reach a settlement, after which the complainant loses interest in seeing him punished. In half the cases, the complainant and the accused end up marrying each other, while in others, the intercourse has been so obviously consensual that the rape charge does not stand,” he says.
The grey areas
On February 18 this year, a 21-year-old woman first lodged a complaint alleging rape and got her boyfriend arrested, However, she later pleaded for his bail and finally approached the Bombay High Court asking that the FIR against him be quashed. She said in her application that she had filed the complaint against him due to a “misunderstanding” and that she had married him later.
A division bench of Justice Naresh H Patil and Justice Anuja Prabhudesai has now directed the Khar police to file the reply of the “accused”. “The officer should record further statement of the complainant and verify the statement of the petitioner that they got married. The police shall also verify authenticity of the marriage certificate and take a final decision in respect of the FIR,” the order said. The final hearing is on May 5.
The woman had initially filed a complaint with the Khar police alleging that the accused had promised to marry her and raped her three days earlier. Her advocate Dharini Nagda later said she lodged the FIR only to pressure him to marry her and didn’t want him arrested.
The woman subsequently pleaded before the metropolitan magistrate’s court in Bandra to grant him bail as he had promised to marry her. But since it was a non-bailable offence, the lawyers of the accused sought bail for him in the sessions Court. On February 22, the accused got bail after the girl filed an affidavit saying he was ready to marry her. After they got married in a temple, the accused filed a plea in the HC seeking to quash the FIR. The woman, too, filed a similar affidavit at the same time. The case is currently pending in the High Court.
In another case in July last year, a 39-year-old man acquitted of rape after spending three years in prison when the Bombay High Court ruled in his favour. The man, Manesh Kotiyan, had in 2010 proposed marriage and the woman had accepted. However, Kotiyan failed to disclose to her that he was already married and even had children. The HC upheld his conviction for cheating. In November 2009, the complainant met the accused while they both worked at a shop in Borivali. The same month, the woman agreed to accompany Kotiyan to a resort in Gorai to celebrate his birthday, where they had sexual intercourse.
In her judgement, Justice Sadhna Jadhav had emphasised that the complainant was an educated adult who was fully aware of the consequences of accompanying Kotiyan. She ruled that the charges of rape were unsustainable.
The judge also observed that the complainant had not put up any resistance or cried for help and ruled that her consent was not obtained through force, intimidation or coercion.
Not a minor matter
Another type of “technical rape” cases that the police see in large numbers are ones where minors are involved. In such cases, victims who are legally minors have consensual sexual relationship with adults. However, when their parents learn about their relationship, they drag the male partner to the police station and insist on registering a complaint even if the girl herself is unwilling to do so. With the introduction of the Protection of Children from Sexual Offences Act (PCSOA) in 2012, men or young boys who had relationships with minor girls started being charged under this stringent Act. While the Indian Penal Code considered 16 years as the age of consent, the PCSOA considers it to be 18 years.
In May 2013, a 17-and-a-half year old girl got pregnant following a relationship with her 27-year-old boyfriend, Arjun Behera. Her pregnancy led to Behera’s arrest under the PCSOA after her incensed grandparents insisted on police action, and also forced her to have an abortion.
Behera had to spend more than five months in jail before he was granted bail, after which he married the victim. However, the case continued till April 2014, when he was ultimately acquitted by the Vasai Sessions Court. Had he been held guilty, Behera would have faced seven years of rigorous imprisonment under the PCSOA.
Also, in some cases involving minors, the minor victim elopes with her boyfriend. However, the couple is traced, brought back home and, as the girl is a minor, a complaint of kidnapping is also registered against the boyfriend. A considerable number of kidnapping cases are also thus technical in nature.
“Again, such cases fall through at the trial stage, mostly because the girls turn hostile. Even though her parents or family members have insisted on a complaint, the girl herself is not willing to depose against the accused,” said former Maharashtra Director General of Police K Subramaniam.
In December 2012, the parents of a 17-year-old deaf-mute girl staying in Trombay reached home at around 5 pm to find their daughter missing. When she ultimately reached home at 6 pm, her furious parents asked her where she had been. They were shocked when she communicated to them using sign language that unidentified men had dragged her into a public toilet near her locality and raped her for three hours. The parents rushed to the Trombay police station, where a case was registered.
By the next day, the word about a heinous crime being committed spread in the locality and by the afternoon, an angry mob gathered outside the police station, demanding everything from death to the rapists to transfers and suspensions of police officers. In the meantime, Rajawadi Hospital, where the victim was taken for medical tests the previous day, sent medical reports to the police stating there was no indication of rape.
The investigating team already had some doubts about the victim’s allegation as they had been posted with the Trombay police for enough time to know it was virtually impossible for anyone to rape a girl inside a public toilet for three hours in the day time. The police confronted the girl with medical reports, after which she confessed she had gone to meet her boyfriend and had cooked up the story to escape her parents’ wrath.
Another category of technical cases involve Bollywood’s worst-kept secret - the casting couch. Struggling actresses and models become victims of the casting couch after being easily lured by the promise of roles in films or even marriage. However, after failing to bag the roles of their dreams, they turn to the police alleging rape against the co-ordinator or the film producer.
Officers say they find it difficult to investigate such cases but in keeping with frequent court directives stressing on prompt action in cases of crimes against women, they register a case immediately and also arrest the accused named by the victims. Officers across police stations agreed that in the recent past, such cases have increased and although these cases do not stand in court, they have to be registered and investigated and a chargesheet has to be prepared and filed in time.
“In the absence of medical evidence, a major part of our investigation includes conducting panchnamas of the residential premises or rooms in hotels or resorts where the couple has stayed and had intercourse in,” Patil says.
Criminal lawyers are of the opinion that technical cases of rape should ideally be investigated as cheating cases.
“The High and Supreme courts have directed the police in the past to register such cases as cheating cases and investigate them accordingly, as such cases do not stand in court and the accused walks out free,” says Neeraj Gupta, a criminal lawyer.
Advocate Satish Borulkar says, “The Supreme Court once said that sexual intercourse on grounds of promise of marriage is not rape. Consent of a major woman, obtained allegedly by fraud, remains consent. When a woman accuses a man of rape after they break up after living together for two-three years, how is it fair to the accused?” he says.
The black-and-white view
National Commission for Women (NCW) member Shamina Shafiq, however, says it is the girls or the women who suffer the most, irrespective of the circumstances. “Young girls and women are lured into a relationship by men who have no intention of marrying them. After taking advantage of the girls, the men leave. The girls or women have no option but to complain to the police. Most of such cases involve minor girls. Often they get into such relationships and end up becoming pregnant at an age when they are not ready,” she says.
Veena Gowda, a women’s rights lawyer, says, “The law recognises that if a sexual relationship is based on the promise of marriage, it amounts to rape. If such a provision exists in the law, why should women not seek action under it? The consequences for the woman in a sexual relationship outside of marriage are always negative and it affects her adversely. The men might end up being called ‘macho’ at the end of it, but it is not so for the woman.”