Source: The Hindu

Introduction

The Bhartiya Nyaya Sanhita, 2023 (BNS) is a proposed new criminal code for India that aims to replace the existing Indian Penal Code, 1860 (IPC).

One of the proposed changes under Section 69 of the BNS is to criminalise consensual sexual intercourse in cases where a man promises to marry a woman but has no intention of doing so. This means that if a man engages in sexual activity with a woman under such circumstances, it will be considered a criminal offense.

• The other bills in the Criminal Code that were introduced with the BNS were Bharatiya Nagarik Suraksha Sanhita, 2023 proposed to replace the Criminal Procedure Code, 1973 and Bharatiya Sakshya Bill, 2023 which will replace the Indian Evidence Act, 1872.

Section 69 of BNS

• The BNS proposes to add this offence under Chapter 5 of BNS titled ‘Offences against Women and Children’.
• The provision talks about two parameters:
  • Deceitful Means: It includes a false promise of employment or promotion, inducement or marrying after suppressing identity.
  • False Promise to Marry: It comes into picture when a man makes a promise to marry a woman with the intention of breaking it for the purpose of sexual exploitation upon consent.

Provision under Present Law

• The Indian Penal Code, 1860 (IPC) nowhere defines such an offence i.e., having sexual intercourse by employing deceitful means rather it is dealt with by two provisions cumulatively which are Section 375 and Section 90.
• Section 375 defines rape whereas Section 90 provides for Consent known to be given under fear or misconception.
• Section 375 mentions that an act of sexual intercourse will amount to rape where consent is obtained:
  • First —Against her will.
  • Secondly —Without her consent.
  • Thirdly —With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
  • Fourthly —With her consent, 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.
  • Fifthly —With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
  • Sixthly —With or without her consent, when she is under eighteen years of age.
  • Seventhly — When she is unable to communicate consent

Note:

• In 2016, the National Crime Record Bureau recorded 10,068 cases of rape, out of which 7655 cases were by known persons on pretext of marriage.
• As per Delhi Police Data, in 2016 about one-fourth of total rape cases registered in the city pertained to sex under False Promise to Marry.

False Promise to Marry vs Breach of Promise

• The Supreme Court (SC) in Mandar Deepak Pawar v. State of Maharashtra (2022) observed that there is a distinction between a false promise to marriage and a breach of promise as:
  • False Promise: Given by the maker on the understanding that it will be broken.
  • Breach of Promise: It is made in good faith but subsequently not fulfilled i.e., if a man can prove that he intended to marry the woman before he entered a sexual relationship with her but later is unable to marry her for any reason not legally punishable.

Proof of Intention to Marry

Case Laws on Consent

• The Courts have pronounced by its verdicts, when and when not an intent to marry is established so as to evaluate whether the accused is guilty of an offence or not. Some of the Important cases on this point are:
  • Uday v. State of Karnataka (2003): SC’s landmark ruling in this case established that consent, given based on a false promise of marriage, should be evaluated on a case-by-case basis when determining its applicability under Section 375 of the IPC.
    • The decision emphasized that factors such as the age, social and educational background of the victim, as well as her societal status, would all be considered in assessing the circumstances surrounding the consent.
  • Rohit Tiwari v. State (2016): Delhi High Court held that if a fully grown-up lady consents to the act of sexual intercourse on a promise to marry and continues to indulge in such activity for long, it is an act of promiscuity on her part and not an act induced by misconception of fact.
  • Naim Ahamed v. State (NCT of Delhi) (2023): SC observed that it would be a folly to treat every breach of promise to marry as a false promise and to prosecute a person for the offence of rape under Section 376 IPC.
    • The bench of Justices Ajay Rastogi and Bela M Trivedi also remarked “One cannot deny a possibility that the accused might have given a promise with all seriousness to marry her, and subsequently might have encountered certain circumstances unforeseen by him or the circumstances beyond his control, which prevented him to fulfill his promise”.
    • Also, the SC in 2022 held that consensual sex on a ‘genuine’ promise of marriage does not constitute rape.

Conclusion

In the absence of clear and justifiable intentions, it is worth noting that the bill could potentially create a situation where the legal consequences of the crime are explicitly outlined, while overlooking the repercussions and harm endured by women. It is crucial to maintain a clear distinction between a false promise and a mere breach of promise when considering whether consensual sexual intercourse should be subject to legal consequences.