Analysis: On the Crime of ‘False Promise to Marry’ in the Bharatiya Nyaya Sanhita, 2023
Introduction
The Bharatiya Nyaya Sanhita (BNS), 2023 proposes to replace the existing Indian Penal Code (IPC), 1860 and includes a specific clause under Section 69 dealing with "sexual intercourse on false promise of marriage." This has been a significant issue in the legal landscape of India, often blurring the lines between consent and exploitation. The article discusses the implications and interpretations of this new provision, comparing it with the existing IPC laws and Supreme Court judgments.
What Section 69 Proposes
Section 69 of the BNS falls under Chapter 5, titled “Offences against women and children.” It identifies two violations:
1. Sexual intercourse by employing deceitful means
2. Sexual intercourse on false promise to marry.
Penalties for both offences include up to ten years of imprisonment. Deceitful means are broadly described as false promises of employment, promotion, or marriage.
Example: If a man promises a woman employment and engages in a sexual relationship with her without intending to provide the job, he would be liable under this section.
Previous Interpretations under IPC
The IPC dealt with cases of false promises through a joint reading of Sections 375 and 90. Section 375 defines rape and outlines what constitutes valid consent, while Section 90 elaborates that consent given under "misconception of fact" cannot be considered valid consent.
Example: In cases where a woman engaged in a sexual relationship under the impression of future marriage, IPC would explore whether her consent was based on a 'misconception of fact'.
Difference Between ‘False Promise’ and ‘Breach of Promise’
The law distinguishes between the two based on the man’s intent at the time of engaging in sexual intercourse. Courts have often found it challenging to ascertain the intention behind promises, adding a layer of complexity to such cases.
Example: If a man genuinely intended to marry but could not do so due to unforeseen circumstances, the law would not consider it a 'false promise.'
Proving Intention to Marry
Intention is crucial in determining the nature of the offense. Legal interpretations often venture into the domain of social norms and expectations, which is a point of contention among activists.
Example: If a man broke off a marriage promise due to castebased pressures, courts have been known to consider these 'circumstances' in their rulings.
Criticisms and Implications
1. Restrictive Ideas about Women: The law has often been criticized for promoting traditional views on women, marriage, and consent, thus affecting women's autonomy.
2. Endogamy and Caste Dynamics: Legal outcomes sometimes uphold castebased practices, particularly in cases involving intercaste relationships.
Example of Criticism: Scholars have argued that the law should not be an instrument to uphold regressive social norms but should be used to protect individual rights, irrespective of gender or caste.
Conclusion
The Bharatiya Nyaya Sanhita, 2023 aims to provide a more explicit legal framework for offenses related to 'false promise to marry.' However, the provision doesn’t seem to fully address the complexities of intention, consent, and social norms. It also risks perpetuating restrictive ideas about women and upholding castebased practices. Therefore, a more nuanced understanding and application of the law are needed to ensure it serves as an instrument of justice rather than oppression.
