On July 31, a 25-year-old woman resident of Ramgarh, Jharkhand lodged an FIR alleging A man had sexual relations with her on the pretext of marriage. The woman claimed in her FIR that the 26-year-old man, whom she knew from college, visited her home several times and expressed his desire to marry her. In one instance, he reportedly explicitly told her mother not to consider any marriage proposals for him, as he wanted to marry her himself.
The woman said in her First Information Report (FIR)She was introduced to his mother, who reportedly supported their union. She claimed that the man and his mother “went back on their commitments”. So she was filing the case under section 69 of the Indian Penal Code (BNS), the new set of criminal laws that replaced the colonial-era Indian Penal Code (IPC). While the case is still pending, the man was granted bail by a local court in October.
Section 69 of the BNS criminalizes “sexual intercourse by fraudulent means” and “a promise to marry a woman, which there is no intention of fulfiling” as grounds for the possibility of imprisonment up to 10 years and a fine. Quoted in. Although this is not considered rape, it is considered “inducement” and also applies to “false promise of employment or promotion, or marriage by concealing identity”.
There are many cases in the court that use Section 69 in their FIRs, thereby opening the doors to public and legal discussion. On December 5, the Gauhati High Court granted bail to a man arrested after a woman claimed that she and the man were in a relationship for nine years, during which period, they regularly had physical relations. . The man reportedly also promised to marry her. However, she learns that he is engaged to other women. When she asked for clarification, the man allegedly cited parental pressure to marry the woman.
“It is the settled position of law that a simple promise to marry without anything additional does not give rise to the concept of misrepresentation of fact. Therefore, in the given circumstances, the petitioner is not entitled to be kept in custody,” the high court said.
codified based on past experience
Advocate KS Nanda says, before the enactment of BNS, such cases were punishable under Section 376(2)(n) (repeated rape of the same woman) as well as Section 90 (consent given under fear or misconception). Were recorded under. Who had represented the accused person in the Jharkhand case.
Ravi Kant, lawyer and country head of the Access to Justice Project, A global network that works against child exploitationExplains the differences between the previous law under the IPC and the new provision in the BNS. “This is a new offense because they have used words like ‘fraudulent means’, ‘inducement’, ‘false promise’. This is not rape,” he clarifies.
Section 69 falls under Chapter 5 of the BNS: ‘Offences against Women and Children’, under “Sexual Offences”. Kant says that this section was needed because during the time of IPC, such cases were very much reported in the courts.
Another difference is that earlier, if a relationship lasted for several years, and the woman claimed that she was duped on the pretext of marriage, the court would usually dismiss such cases, he says. “It was argued that a long-term relationship implies mutual consent and understanding, making it difficult to prove fraud.” Now even if the relationship is consensual, it is considered a crime because it is considered a false promise or deception.
gender biased
Deepika Narayan Bhardwaj, a journalist, filmmaker and activist, calls the new law “inherently gender biased and discriminatory”, saying the law suggests women have no agency in decisions related to sexual matters. On January 10, 2024, he started an online petition on Change.org to repeal Section 69 of the BNS, which has since garnered over 60,000 signatures.
His argument in the petition is that “consensual sexual intercourse on the promise of marriage will be a crime only if the man refuses to do so and not the woman”. The petition also talks about the power equation, where “the law recognizes that a woman cannot be in the power to induce a man to have sex with her by false promise of a job or promotion”. He described the law as “extremely regressive” and also said that it “completely rejects the concept of will and consent” related to sexual matters.
Since Section 69 has been added recently, Bhardwaj uses previous data recorded under Section 376 (rape) for reference and comparison. As of 2015, the National Crime Records Bureau (NCRB) which compiles an annual collection of crimes across India in the category ‘Relationship of perpetrators to rape victims’ under the chapter ‘Crime against women’, accused and survivors in rape cases. Relationships between were broadly classified as ‘family members’, ‘neighbours’ or ‘strangers’. However, the increasing number of cases involving ‘false promise of marriage’ prompted the NCRB to refine its classification.
Since 2016, specific subcategories were introduced under ‘relationship of perpetrators to rape victims’, including ‘friends’, ‘live-in partners under the pretext of marriage’ and ‘separated spouses’. NCRB data shows that, on an average, cases in this category accounted for 39.45% of the total reported rape cases between 2016 and 2022.
NCRB data shows that the average conviction rate across all rape cases between 2016 and 2022 was 29.71%. However, the data do not include sub-categorization of conviction rates under the category ‘relation of perpetrators to rape victims’. This makes it challenging to determine specific sentencing trends for cases involving false promises of marriage or similar charges.
parliamentary report
Report no. Rajya Sabha resolution 246 on BNS, issued by the department-related Parliamentary Standing Committee on Home Affairs on November 12 last year, six months before BNS came into existence, had cautioned against reinforcing gender stereotypes.
“Determining whether a promise to marry has been made can be subjective and challenging to prove,” it said. Intentions may change over time, and it may be difficult to prove that the promise was truly made with the intent to marry.”
It also says that “criminalizing the promise of marriage” could interfere with a person’s right to privacy and autonomy. The report said that “defining a legally binding promise to marry can be vague and open to interpretation” leading to “inconsistencies in enforcement and decisions.” Also, a verbal intention to marry can be a challenge when it comes to collecting evidence.
Different court views
On November 26, the Supreme Court flagged a “worrying trend” of criminalizing long-term consensual relationships after they turn sour. Justices BV Nagarathna and N. “If physical relations at such a late stage are equated with criminality, it can have serious consequences,” a bench of Justice Kotiswar Singh said while quashing an FIR against a man accused of rape. A woman who, according to her, was in a relationship with him for more than nine years.
In another judgment, the Gujarat High Court had on September 19 this year remarked that, “In every case where a man fails to marry a woman despite a promise made to her, (he) will be held liable for the offense of rape. Cannot be held guilty.”
The high court’s decision came while quashing a rape FIR registered in February 2019 against a man who had physical relations with a woman on the promise of marriage. The cases registered before the implementation of BNS are being tried under the old IPC only. The woman alleged in her FIR complaint that she became pregnant and when she told the man about it, he went back on his promise.
During the pendency of the case, a child was born. However, when the DNA samples of the accused and the child were tested, it was proved that the accused was not his biological father. Meanwhile, the woman married another man and did not appear in the court proceedings again.
“He can be held guilty only if it is proved that the promise of marriage was not made with the intention of honoring it and that was the only reason due to which the woman agreed to have sexual relations,” the high court said. It said, ‘The cases of consensual sexual relations later being converted into allegations of rape are increasing rapidly.’
On the other hand, in a separate case, the Kerala High Court in October this year refused to quash the criminal proceedings against a priest accused of raping a woman after she promised to marry him. Rejecting Pujari’s plea, the High Court said that prima facie, allegations have been made out requiring trial of the case and in such a case, there is no reason to close the proceedings earlier.
Supporting the new law, advocate Gaurav Dudeja, partner, law firm Phoenix Legal, says, “Section 69 of the BNS fills the gaps and ambiguities in the previous law relating to sexual relations obtained under false pretenses, such as promise of marriage or other fraudulent means. Addresses. ,
“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 real intention to begin with, amounts to rape. By invoking Section 69, BNS clearly criminalizes such acts and provides clear penalties for them,” he explains.
This law is protective of women who work in a male-dominated, patriarchal society, where marriage is seen as a way for women to achieve personhood. Many women are constantly told throughout their childhood years that they belong in another home – the home of their husbands and in-laws.
Dudeja says the law broadens the legal framework by introducing the concept of sexual intercourse by fraudulent means. “Furthermore, it recognizes that coercion is not limited to physical force, but can also be psychological or emotional – an aspect that has not been explicitly addressed under earlier legislation.”
PIL in 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 the BNS. “This section is derogatory and misogynistic to the extent that it treats women as naïve, gullible and incapable of taking decisions related to their lives,” the plea by a lawyer practicing in Kerala courts said. The petition also argues that the section will create “serious problems for people in live-in relationships and people in relationships in the nature of marriage”.
The petition further argued that “By not including the LGBTQ community, it is a violation of the Equal Protection Clause. Moreover it punishes a very basic human sentiment, the right to have sex, which is an aspect protected under Article 21 of the Constitution. The High Court had sought a reply from the Central Government on this issue.
published – December 13, 2024 08:26 am IST
