Union Home Minister Amit Shah introduced three new bills in the Parliament on Friday, 11 August, to replace the three basic criminal laws of the country:
The Bhartiya Nyay Sanhita (to replace the Indian Penal Code, 1860)
The Bhartiya Sakshya Bill (to replace the Indian Evidence Act, 1872); and
The Bhartiya Nagarik Suraksha Sanhita (to replace the Code of Criminal Procedure, 1973)
This piece will focus on the category of offence called ‘sexual intercourse on false promise of marriage,’ outlined under Section 69 of the new ‘Nyay Sanhita’ and delve into its implications.
What The Section Says & What It Means
The section reads as follows:
69. Whoever, by deceitful means or making by promise to marry to a woman without any intention of fulfilling the same, and has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.
Explanation: “deceitful means” shall include the false promise of employment or promotion, inducement or marring [sic]after suppressing identity.
The section, thus, creates two offences: one, sexual intercourse by deceitful means, and second, sexual intercourse on promise of marriage.
The first category of ‘deceitful means’ seems confusing given that sexual intercourse based on abuse of fiduciary relationships is already covered under section 68 (Sexual intercourse by a person in authority). False promise of employment too is a very broad framing.
There are three ingredients required for constituting an offense under the second category which is the focus of this piece:
The accused makes a promise to marry
The promise is without any intention of being fulfilled
The accused has sexual intercourse with the victim
Where Does The Law Stand on This Currently?
Under the Indian Penal Code (IPC), Sections 375-76 define and punish rape.
The category of ‘sexual intercourse on promise of marriage’ does not feature separately in the current laws and has been a judicial invention based on section 90 of the IPC.
Section 90 provides that consent given under fear of injury, or under a misconception of fact is not consent. Reading section 90 and 375 (which defines rape) together, the courts distinguished between a ‘false promise of marriage’ and a mere ‘breach of promise.’
‘False promise’ means situations where the accused from the very beginning did not intend to marry, and ‘breach of promise’ means situations where the accused initially did not intend to marry in good faith but later could not fulfill his promise.
The first category amounts to a misconception of fact i.e. the consent obtained on the false promise is not considered valid consent and thus is liable to be punished as rape whereas mere breach of promise is not liable to be punished.
How This Impacts Survivors
And herein lies the deep trouble with this provision.
The ‘intention to marry’ is very hard to ascertain, encouraging courts to rely on familial stereotypes based on caste, sexual history, and age of the survivor to determine whether the later refusal to marry was justifiable or not.
Thus for instance, in one particular case (Uday v State of Karnataka, 2003), a woman from the OBC caste was raped, impregnated, and later abandoned by an upper-caste (Brahmin) accused with whom the victim was romantically involved.
The court acquitted the accused on the ground that the victim was ‘clearly conscious’ that their relationship would meet with ‘stiff opposition’ due to their ‘caste’ and thus it cannot be said that she was under ‘misconception’ as to the promise of marriage.
As legal scholar Nikita Sonavane points out, the court endorsed endogamy in this case. The Uday judgment has been applied consistently since then often on casteist lines.
In another case, (Pramod Pawar v. State of Maharashtra, 2019) the court showed similar acceptance of ‘caste considerations’ despite hurling of casteist abuses by the accused against the victim.
Courts have also relied on the past sexual history, previous marital status and age of victim to determine whether the woman was justified in trusting a promise of marriage.
For instance in one case, the Delhi High Court took note of the age and previous broken marriage of the victim and 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.”
Essentially, the test for determining the varsity of marriage has become whether the relationship was within socially acceptable limits or not. The ‘victim blaming’ nature of the test is hard to miss
In one case, the court asked the survivor where was the compulsion for her to establish physical relations without ensuring that the accused and his family were willing to perform the marriage.
In the recent past, the judiciary had shown some awareness of the questionable origin and use of criminal law in these cases. However, now that the legislature has cemented the offense, that possibility is over and the confusion will continue.
The New Provision Pays No Attention to Feminist & Anti-Caste Questions
The anti-caste feminist scholars and activists have long questioned whether reliance on criminal law is a suitable response in these cases. The continued use of excessive criminal laws tends to harm marginalised communities more often.
The first feminist objection is an agency-centric objection, which argues that the category of ‘false promise of marriage’ inherently presumes that women are incapable of giving consent to sex outside marriage.
Thus, the law needs to step in and ‘protect’ women. In this process, criminal law upholds patriarchal, heteronormative, and conservative notions of relationships.
The second feminist objection is anti-caste, which argues that the cases involving women from marginalised castes cause dignitary harm to Dalit Bahujan women, and thus legislative responses beyond criminal law like civil damages should be discovered.
Instead of paying attention to feminist and anti-caste voices, the legislature has run in the opposite direction. The bill was brought on the last day of the Monsoon Session without any prior public availability of the draft Bill or prior legislative consultation, and it shows!
(Surbhi Karwa is a BCL graduate from the University of Oxford. She is thankful to Shubham Kumar for his suggestion on section 68. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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