Introduction
India’s criminal justice system has evolved from age-old codes to a modern framework, with the Bharatiya Nyaya Sanhita (BNS) having replaced the Indian Penal Code (IPC) on July 1, 2024. The BNS in itself is not entirely dissimilar to the IPC. It retains some of the original provisions, while some others have either been overhauled or replaced. Few entirely new provisions have also been added and an example of this is Section 69 of Chapter V of the Bharatiya Nyaya Sanhita, 2023. This section pertains to sexual intercourse by employing deceitful means. Having probed the section, it has been categorised into three important, interdependent elements.
Firstly, sexual intercourse to which consent was induced either by a promise to marry without the intention of fulfilling it from the very beginning (‘a false promise’) or by deception, which may include a false promise of marriage by suppressing identity, is a punishable offence under this section of the BNS. Secondly, an indispensable proviso is that such an offence shall not amount to and cannot be tried as rape. Finally, such an offence is punishable with an imprisonment, the maximum time being ten years and a fine payable to the aggrieved. The blog expounds on the repercussions of blatantly patriarchal drafting and the different ways in which it offends constitutional values. It exposits how this provision departs from its predecessor, sets forth crucial questions on consent and delves into the spectrum of different kinds of promises. The equivocal sentence for punishment and the susceptibility to misuse by different parties is also highlighted. Finally, the piece respectfully touches upon the systematic exclusion of certain groups from seeking recourse.
Patriarchal Presumptions and Constitutional Conflicts in Section 69 BNS
For one to be punished by this section, the act of sexual intercourse should have been consented to by solely or integrally relying upon a duplicitous and an insincere promise. The language of the section plainly implies that only a woman can seek redressal for consent obtained perfidiously. Only a man and a woman can legally be wed in India, subject to other essential conditions. It can rationally be inferred that the phrase ‘by making promise to marry a woman without any intention of fulfilling the same’ hints at the fact that such offences can be redressed only when perpetrated against a woman by a man. Such restrictive language leads to two major shortcomings: it excludes male victims and reinforces the stereotype of male perpetrators. Drawing on an earlier inference, this section is deemed to be inherently prejudicial towards men; it renders the law ineffective in holding female perpetrators accountable, thus leaving no recourse to those who suffer just as much damage, emotional or otherwise, at the behest of the perpetrator.
The second, more profound repercussion that casts aspersions on the socio-legal progress our country has made is the set of misogynistic and patriarchal fundamentals of the section. The section propounds the idea that men alone can hold positions of authority, that men alone can propose marriage. Furthermore, an undesired repercussion of this section is that it can be grossly misused by various others, not just parties to a suit, to vilify and criminalise wilful sexual encounters before marriage. This is profoundly harmful in a society like ours which places significant importance on concepts of purity and virginity. Additionally, it may instil in the man the fear of prosecution on mala fide allegations and undermines their right to consensual, physical relations.
It was noted in Uday v the State of Karnataka that such cases require a subjective analysis to do complete justice which would lay bare germane facts like the communication between the parties, the number and frequency of sexual encounters, a historical analysis of their relationship and more. Evidently, the section violates peoples’ right to privacy under Article 21, an inevitable repercussion of adjudging matters of sexual offences, but the said violation is more threatening considering the taboo live-in relationships and pre-marital relations are, owing to which, the parties may face the threat of persecution, eviction, dismissal from jobs and in adverse cases, the threat of violence. Thus, the section violates and undermines peoples’ fundamental rights under Articles 14, 19 and 21.
Blurred Boundaries of Consent and Ambiguous Punishments in Section 69, BNS
Section 69 of the BNS departs from its predecessor by not equating such a sexual offence to that of rape. Earlier any such case which alleged sexual intercourse that was induced by false promises was dealt with under Section 375, read along with Section 90 of the IPC. Section 375 defined rape and Section 90 explicated that consent obtained under a misconception of fact, which judicial intellect has paralleled to a false promise,would not be valid. This poses an ethical question. While rape inherently involves a lack of consent, Section 69 questions the validity of consent induced through deceit, blurring the line between genuine and fraudulent intentions.
The other side denies such a difference and questions whether a consent that was obtained perfidiously can be considered ‘free?’ If not, then should the observed gravity of the offence be diminished based solely on its definition? Another important question to be asked is about the requirement of proof and on whom will the burden of proof lie? The final point of contention relates to the punishment that is to be delegated if found guilty under the said section, which only mentions the maximum time for which a person can be imprisoned and a fine. There is no mention of a minimum sentence or the least amount of time for which a man can be put behind bars. This leaves room for ambiguity possibly resulting in a travesty of justice.
Promises and Prejudices: The Misuse of Law and Exclusion in Section 69, BNS
There is a difference between a false promise and a genuine promise that was broken in the later stages of the relationship. The former is a promise that the promisor never intended to fulfil and was mala fide ab initio. The latter is a promise that, when initially made, was well-intentioned but due to subsequent circumstances, was broken. By failing to account for the difference between the two, not considering the situations where the intent to marry has changed, the law remains vague about the proceedings in light of such differences and objectively imposes criminal liability. For instance, a man, out of true love and other validating reasons, proposes marriage to his partner. However, due to certain circumstances that ensued, the couple parted ways. In such cases, a woman may exploit her position and bring proceedings against the man maliciously. If the man fails to prove that the promise was broken subsequently for unrelated reasons, he will be sentenced for a crime that he had not committed.
The law is susceptible to misuse even when there never was an utterance of such a promise but was merely alleged by the woman. Another such example can be of a woman maliciously bringing proceedings against her boss, even though their relationship might have never materialised on the promise of a promotion.
A situation wherein a woman’s family is horrified upon learning of her relations with a man and initiates proceedings against the man is plausible. In December 2021, a sessions court in Ahmedabad, had acquitted a man of charges of rape when pertinent facts of the relationship were brought to light and it was observed how the woman had tried to bring such an unfounded and vindictive case against the man. The legislative intellect could have been dispensed to ensure that the occurrence of such scenarios, which were plenty under the IPC regime, are mitigated post 1st July.
Section 69 never says that these acts are necessarily perpetrated only by a man, however, legal protection will primarily be extended to women who have been directly affected. In essence, members of the LGBTQ+ community will have no legal backing to be able to knock on the doors of the court. With regard to same sex couples, consensual sexual intercourse was decriminalised in 2018. Hence, if a person in such a relationship were to be wronged by their partner either by way of being proposed marriage in a different country or by not being told of their marital status, the person wronged would have no support from the law. In essence, the law guarantees certain rights to the members of the LGBTQ+ community but will not come to the rescue of the person if their rights are infringed upon in light of false promises to marry.
Conclusion
Section 69, intended as a protective measure for women, unfurls antiquated notions, infringes upon personal liberties and is intensely prone to misuse. While the intention behind criminalising such an act can be appreciated, the section grossly impinges on the rights of many, excludes many others from approaching the court and undermines crucial constitutional and judicial values. It might not always come to the rescue of women because of its inherent impediments and the sheer number of acquittals due to procedural lacunae that may arise. Many survivors may hesitate to seek recourse owing to fear of vilification or ostracization. It is unfortunate that a prima facie progressive provision methodically excludes the LGBTQ+ community. The section can greatly benefit from being made gender neutral. It is imperative that this provision be revised so that is reflects the contemporary society’s ways than the colonial era times.
This blog is written by Siddhi Singh and Krish Vikram, Law Student, Symbiosis Law School Pune.