On July 31, a 25-year-old woman from Ramgarh, Jharkhand, filed an FIR accusing a man of engaging in a sexual relationship with her under the pretence of marriage. The woman claimed in her FIR that the man, 26, who she had known from college, had come home on multiple occasions and expressed the wish to marry her. In one instance, he allegedly told her mother explicitly not to consider any marriage proposals for her, as he intended to marry her himself.
The woman stated in her first information report (FIR)that she was introduced to his mother, who allegedly supported their union. She claimed that the man and his mother “backtracked on their commitments”. She was therefore filing a case under Section 69 of the Bharatiya Nyaya Sanhita (BNS), the new set of criminal laws that replaces the colonial-era Indian Penal Code (IPC). While the trial is still pending, the man was granted bail by a local court in October.
Section 69 of the BNS, criminalizes “sexual intercourse by employing deceitful means” and cites the “promise to marry…a woman without any intention of fulfilling the same”, as grounds for imprisonment up to 10 years and the possibility of a fine. While it is not treated as rape, it is considered “inducement” and also applies to “false promise of employment or promotion, or marrying by suppressing identity”.
There are several cases in court that use Section 69 in their FIRs, opening the doors to public and legal discourse around it. On December 5, the Gauhati High Court granted bail to a man after he was arrested when a woman claimed that she and the man had been in a relationship for nine years, during which period, they engaged in a physical relationship regularly. The man also allegedly promised her to marry. However, she found out that he had become engaged to another women. When she asked for an explanation, the man allegedly cited parental pressure to marry the woman.
“It is a settled position of law that a simple promise to marry without anything more does not give rise to the concept of misconception of fact. Therefore, under the given circumstances, the petitioner does not deserve to be detained in custody,” the high court said.
Codified based on past experience
Prior to the enactment of BNS, such cases were registered under Section 376(2)(n) (commits rape repeatedly on the same woman) along with Section 90 (consent known to be given under fear or misconception), says Advocate K.S. Nanda, who represented the accused man in the Jharkhand case.
Ravi Kant, advocate and country head of the Access to Justice Project, a global network that works against child exploitation, explains the difference between the previous law under IPC and the new provision in the BNS. “This is a new offense, because they have used words such as ‘deceitful means’, ‘inducement’, ‘false promise’. This is not rape,” he clarifies.
Section 69 comes within Chapter 5 of the BNS: ‘Of Offences Against Woman and Child’, under “sexual offences”. The need for this section, says Kant, was “because such cases were reported a lot in the courts during the IPC time”.
Another difference is that earlier, if a relationship lasted several years, and the woman claimed she was cheated on the pretext of marriage, the court typically dismissed such cases, he says. “It was reasoned that a long-term relationship implied mutual consent and understanding, making fraud difficult to substantiate.” Now, even if the relationship is consensual, it is treated as an offence, because it is taken as a false promise or a deception.
Gender biased
Deepika Narayan Bhardwaj, a journalist, filmmaker, and activist, calls the new law “inherently gender biased and discriminative” with the law suggesting that women do not have agency in decisions around sexual matters. On January 10, 2024, she had started an online petition on Change.org to repeal Section 69 of the BNS, which has since garnered over 60,000 signatures.
Her contention in the petition is that “a consensual sexual relationship made on promise of marriage will be a crime only if a man reneges from it and not a woman”. The petition also talks about the power equation, where “the law presumes a woman cannot be in position of power to induce a man into sex by false promise of job or promotion”. She called the law “extremely regressive” and also said it “completely discards the concept of will and consent” around sexual matters.
Since Section 69 is a recent addition, Bhardwaj uses past data recorded under Section 376 (rape) for context and comparison. Until 2015, the National Crime Records Bureau (NCRB) that compiles a yearly compendium of crimes across India in ‘Offenders Relation to Victims of Rape’ category under the ‘Crime Against Women’ chapter, the relationship between the accused and the survivor in rape cases was broadly categorized as a ‘family member,’ ‘neighbour,’ or ‘stranger,’. However, the growing number of cases involving ‘false promises of marriage’ led the NCRB to refine its classifications.
From 2016 onward, specific subcategories were introduced under the ‘Offenders Relation to Victims of Rape’, including ‘friend,’ ‘live in partners on pretext of marriage,’ and ‘separated husband’. NCRB data indicates that, on average, cases under this category accounted for 39.45% of the total reported rape cases between 2016 and 2022.
NCRB data further reveals that the average conviction rate for all rape cases between 2016 and 2022 stood at 29.71%. However, the data does not include a sub-classification of conviction rates under the ‘Offenders Relation to Victims of Rape’ category. This makes it challenging to determine conviction trends specific to cases involving false promises of marriage or similar allegations.
Parliamentary report
The report no. 246 of the Rajya Sabha on the BNS, released by the Department-related Parliamentary Standing Committee on Home Affairs on November 12 last year, six months before the BNS came into force, had cautioned against reinforcing gender stereotypes.
It said, “Determining whether a promise to marry has been made can be subjective and challenging to prove. Intentions can change over time, and proving that a promise was genuinely made with the intention to marry can be difficult.”
It also said that “criminalising a Promise to Marry” can intrude into an individual’s right to privacy and autonomy. The report stated that “defining what constitutes a legally binding promise to marry can be vague and open to interpretation” which could lead to “inconsistencies in enforcement and judgments”. Plus, a verbal intention to marry could be a challenge when it came to evidence collection.
Differing court views
On November 26, the Supreme Court flagged a “worrying trend” of criminalising long-term consensual relationships after they turn sour. “If criminality is to be attached to such prolonged physical relationship at a very belated stage, it can lead to serious consequences,” the bench of Justices B.V. Nagarathna and N. Kotiswar Singh said, while quashing an FIR against a man accused of rape by a woman who was in a relationship with him for over nine years, by her own account.
In another judgment, the Gujarat High Court on September 19 this year commented that, “In every case where a man fails to marry a woman despite a promise made to her, (he) cannot be held guilty for committing the offence of rape.”
The high court’s ruling came while quashing a February 2019 FIR for rape filed against a man, who had entered into a physical relationship with a woman on the promise of marriage. Cases registered before the BNS came into force are being tried on the old IPC. The woman in her FIR complaint alleged that she got pregnant and when she informed the man, he reneged from his promise.
During the pendency of the trial, a baby boy was born. However, when the DNA samples of the accused and the child were tested, it was proven that the accused was not the biological father. Meanwhile the woman got married to another person and didn’t show up for the court proceeding again.
“He can only be held guilty if it is proved that the promise to marry was given with no intention to honour it and also that was the only reason due to which the woman agreed to have a sexual relationship,” the High Court said. It added: “Cases of consensual sexual relationship being later converted into allegations of rape are rapidly increasing”.
On the other hand, in a separate case, the Kerala High Court in October this year declined to quash the criminal proceedings against a priest accused of raping a woman after promising to marry her. Dismissing the plea of the priest, the high court observed that prima facie, allegations are made out warranting trial of the matter and in such a case, there is no reason to close the proceedings earlier.
Supporting the new law, advocate Gaurav Dudeja, Partner at law firm Phoenix Legal, says, “Section 69 of BNS addresses the gaps and ambiguities in the previous law concerning sexual intercourse obtained under false pretences, such as promises of marriage or other deceitful means.”
“The definition of rape revolves around the ‘consent’ of the woman, and courts have consistently held that sexual intercourse based on a false promise of marriage, where there was no genuine intent from the outset, falls within the scope of rape. By introducing Section 69, the BNS explicitly criminalizes such acts and provides clear punishment for them,” he explains.
The law is protective to women who operate in a male-dominated, patriarchal society, where marriage for women is seen as a way of attaining personhood. Many women are consistently told in their childhood years that they belong in another home — that of their husband’s and in-law’s.
Dudeja says the law broadens the legal framework by introducing the concept of sexual intercourse through deceitful means. “Moreover, it acknowledges that coercion is not limited to physical force, but can also be psychological or emotional — an aspect not explicitly addressed under the earlier law.”
PIL at Kerala HC
In September this year, a public interest litigation (PIL) was filed before the Kerala High Court challenging the constitutional validity of Section 69 of BNS. The plea by a lawyer practising in the courts of Kerala contended that, “The Section is derogatory and misogynistic to the extent that it views women as naive, gullible and incapable of making decisions pertaining to their life.” The plea also contends that the Section would lead to “serious issues for people who are in live-in relationship and people in relationships in the nature of marriage”.
The plea further contended that “by omitting to include the LGBTQ community, it is violative of the equal protection clause. Further it penalises a very basic human emotion, the right to have sexual union, a facet protected Under Article 21 of the Constitution”. The high court had sought a response from the Central government on the issue.
Published – December 13, 2024 08:26 am IST
