Thursday, July 05, 2012

The Promise of a Promise

Marriage is a promise to do and not do certain things.  Whether one realizes it or not, by marrying, one implicitly agrees to thousands of regulations and case law about property division, alimony, child custody, maintenance, "conjugal rights", bar on sexual intercourse with anyone else, and so on.

Marriage is not just a piece of paper, it is a legally enforceable contract with the modern state especially interested in enforcing it.
In most modern cultural settings, before one decides to commit to getting married, there is a period of courtship and "getting to know each other".  
During that period, depending upon the cultural mores, there is a degree of physical intimacy up to and including sexual intercourse.  Sexual compatibility is considered a major factor in deciding to get married to someone.  In US and most parts of Europe, sex is a natural part of dating.  It is becoming so in urban India as well.
The very purpose of dating and courtship is to determine whether a long-term bond is realizable or not.  That long-term bond may eventuate into a state-sanctioned legal contract ("marriage") or it may remain informal (a "live-in").
In recent times in India, there is a growing tendency for grown, literate women (air-hostesses of Mumbai seem to be topping the charts here) to cry "rape" when a man they were involved with refuses to eventually sign the marriage contract.  I call this a travesty.
The Indian High Courts are conflicted on this issue (the Bombay High Court clearly saying it is not rape), and the Supreme Court of India seems to side with the rape interpretation, while the case law is confusing.
Interpreting a "false promise of marriage" as "rape" is just another nail in the coffin of men's rights in India.  Of course, the police is only too happy to register such cases and arrest the accused, as they are scared of the wrath of the feminist NGOs in case they refuse.
In my opinion, it is rape only if the raped person was coerced, intimidated or drugged.  Inducing wistful daydreams, promises of everlasting love, and suchlike, is the very stuff that romance is made of.  A romance not culminating in a contract is NOT a crime, it is a failure of compatibility, an emotional tragedy, a breaking of hearts, but it is NOT a crime.

If a woman alleges damages (loss of reputation, loss of virginity, pregnancy, etc.), then there are two questions to be asked:
1. Assuming the age of consent is not an issue, whether the sex was consensual.
2. Whether the sexual partners knew that the legal contract of marriage had not been signed yet.  That is, there was no misconception that the marriage of some sort (say, at a temple) had already taken place.

If these two conditions are satisfied, then there is neither cheating, nor rape, nor can there be any question of exploitation. If the first condition is not satisfied, it is rape.  If the second condition is not satisfied, then it is cheating.
If the woman is indeed wanting to protect her reputation and virginity, then let her withhold physical intimacy till the man signs the contract.  If she is unwilling to get pregnant, let her use the pill or insist on safe sex.
If she is an adult, she should know the consequences of her actions and the law should not become a white-knight excusing her own culpability in the matter.
On the other hand, if she is not to be treated as an adult, then how can anyone even marry her?  Then, she must be considered developmentally challenged, and treated at an appropriate facility.  If she is an adult, then she, and the concerned police officials, must be tried for harassment and for making a false complaint.
A marriage is a promise.  There cannot be a promise to make a promise.  It is not a breach of contract to not sign a contract.  It is as simple as that.


Anonymous said...

We are becoming more and more complicated and ugly creatures. We talk freedom, yet find ways to tie ourselves even more. Is this all due to our conflicting desires? Unless we understand ourselves better, we add more pains to our already messy, sorrowful lives.

visitor said...

I often wonder what inspires you to write your posts. I mean - how do you decide what topic. Are they topical? Do they concern something you want to communicate to people around you because they are experiencing it? I mean your topics are always thoughtful and interesting, and always commenting on our society, but also so random that I can't help but wonder. So what led you to write about this, for example, if one can ask.

Harmanjit Singh said...


I am quite interested in gender politics and the way it is shaping our laws. Sometimes, an issue is already debated on the interwebs, but every once in a while, I find that almost nobody is commenting on a particular facet. Then, I jump in.

They say one should have a "focus" for one's blog, but I'm too lazy to create a half-dozen blogs. I have varied interests, and like to read and write about my interests... Also, putting something (that I strongly feel about) in writing, and seeing the comments and feedback, is a great boon! I am sometimes forced to revisit my position.

Sridhar said...

The road to hell is paved with good intentions. These so called feminists and their male apologists are harming women in their zeal to protect them from the realities of life. You're right, it's very simple, if it was consensual relations between consenting adults, the state or law enforcement should just stay out of it.

Perhaps, playing along with this absurdity men should demand a written agreement from women prior to indulging in the act, which states that the about to commence intercourse cannot be construed as a commitment to marriage (In these peoples minds such a scenario will never play out, because surely only men have sex for pleasure). The most annoying specimen is the urban Indian woman (not all obviously) who uses modernity and liberation when it suits her, but becomes an oppressed woman that needs to be saved by her family and the state in times of strife.

Anonymous said...

There is an unwritten law in most societies(even so called "Western" societies) that pre marital sex is a wrong thing.
The fact that the law is unwritten is what causes all the confusion in the minds of men and women leading to all these "false" allegations/promises/interpretations/liberties etc etc.
It is high time the law is put down in writing with equal penalties to both men and women breaking the law.
That way there will be fairness,egalitarianism and less confusion in society.

Anonymous said...

Yes sounds like a great panacea for many evils plaguing human societies...
"All those (regardless of gender/caste/creed/race etc...)who violate the Law be banished to solitary cofinement for 6 months and be advised to undergo counseling and be educated about SelfControl and abstinence.." -------What say you, Harmanjit?