False Promises to Marry

Why in news?

In the recently proposed Bharatiya Nyaya Sanhita (BNS) bill 2023, if a man promises to marry a woman but never intends to, and still has ‘consensual’ sex with her, it will amount to a criminal offence under Section 69.

What does Section 69 say?

• Chapter 5 of the Bill- It is titled as “Offences against woman and children” and describes sexual intercourse by employing deceitful means.
• Section 69 - Whoever, by deceitful means or by making promise to marry to a woman without any intention of fulfilling the same, and has sexual intercourse with her, shall be punished with imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine.
  • Deceitful means- It will include false promise of employment or promotion, inducement or marrying after suppressing identity.
  • False promise to marry- It will be attracted only when a man makes a promise to marry a woman, with the intention of breaking it, for the purpose of getting her consent and sexually exploiting her.
• Penalty- Both offences will extract a penalty of up to 10 years of imprisonment.

How has IPC dealt with cases of ‘false promise to marry’?

• Causes
  • When rape is committed and the promise of marriage is used to silence the victim or
  • Where the promise is made to ‘convince’ the person into entering a sexual relationship.

• IPC- They were dealt with joint reading of Sections 375 and 90 of the IPC.
• Section 375- It defines rape and defines consent as “an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates a willingness to participate in the specific sexual act.”
• This section lists 7 types of consent which would amount to rape if violated including the consent taken through fear of death, hurt or intoxication.
• Section 90- Consent, given under “fear of injury” or “misconception of fact,” cannot be considered as consent.
• Court rulings- In 2021, the Supreme Court reiterated that under Section 375, a woman’s consent must involve an active and reasoned deliberation towards the proposed act.
• Karnataka Court has said that educated women in a pre-marital relationship cannot claim rape after the relationship is over for she is ‘mature’ enough to be aware of the consequences of being in a premarital relationship.

What is the difference between false promise of marriage’ vs ‘breach of promise’?

• Both are distinguished on the basis of proving if the man intended to marry at the time of engaging in sex. They are dealt under two parameters.

  • Rape- If the promise was false, with the intention of being broken later on, this would disregard a woman’s consent through a misconception of fact and would be considered rape.
  • False promise- The false promise itself must be of immediate relevance, or bear a direct nexus to the woman’s decision to engage in the sexual act, as argued in Sonu alias Subhash Kumar vs State of U.P. And Another in 2019.
• Supreme Court observations- It observed that
  • False promise- It is given on the understanding by its maker that it will be broken.
  • Breach of promise- It is made in good faith but subsequently not fulfilled.
• Activists argument- ‘Circumstances’ are shorthand for social norms that uphold the status quo, reinforcing gender roles, patriarchy and caste lines.
• Consensual sex- The Supreme Court in 2022 held that consensual sex on genuine promise of marriage does not constitute rape.
• The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust.

What are the issues involved in proving ‘intention’ to marry?

• Central issue- It involves
  • How consent is obtained— through deceitful means, or by misconception
  • Whether the man ever intended to marry the woman.
• Codification of offence- Section 69 in the BNS codifies the offence instead of creating a new one.
• In its present form, the Bill doesn’t dissolve the confused distinction between ‘false promise’ and ‘breach of promise’.
• Affect women autonomy- Section 69 if unscrutinised may promote restrictive ideas about women, marriage and consent which hinder women’s autonomy and re-victimise them. 
• Victim blaming lens- Delhi High Court verdict on pre-marital sex shifts the burden to women to prove their consent is vitiated. 
• Law as weapon- The women may use the law as a weapon for vengeance and personal vendetta.
• Promotes endogamy- The law shifts the conversation away from the real harm and abuse that women face.
• Caste factor – Taking the “impossibility of an inter-caste marriage” as a ground to acquit the accused of rape in fact amounts to upholding the archaic practice of marrying within one’s own caste.

References

1. The Hindu- False promises to marry in new criminal law bill
2. PIB- Criminal Justice Bills
3. PRS- Bharatiya Nyaya Sanhita Bill