How Section 69 of the Bharatiya Nyaya Sanhita proposes to criminalise sex on false promise of marriage

While the Bhartiya Nyaya Sanhita (BNS) aims to overhaul the colonial-era Indian Penal Code (IPC), “sex on false promise of marriage” has been criminalised for the first time. Although the intent seems to be a novel one, it needs more clarity to avoid confusion..Here, we examine the similarities between Section 69 of the BNS, which deals with the offence of sex on the false promise of marriage, and its existing counterpart in the IPC, and whether more clarity would help distinguish the offence..What is Section 69?.Secition 69 of BNS is defined under the heading, “sexual intercourse by deceitful means, etc”. It reads:"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."“Deceitful means” has been explained in the provision as a man making a false promise of employment or promotion, inducement or marrying after suppressing his identity..In other words, if a man has sex with a woman on the false promise of marrying her or promises her a job or a promotion, he can be prosecuted under this provision. Notably, the provision doesn’t mention consent and underlines that such intercourse doesn’t have to amount to the offence of rape. While a maximum penalty of 10 years' imprisonment and fine have been prescribed for the crime, no minimum punishment has been set..How is it different from an exisiting IPC provision?.The only IPC provision that seems to correspond to the new provision is Section 493, which is titled as “cohabitation caused by a man deceitfully inducing a belief of lawful marriage”. It reads:“Every man who by deceit causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit or have sexual intercourse with him in that belief, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."The new provision seemingly carries a similar objective compared to Section 493 except the caveat, “such sexual intercourse not amounting to the offence of rape,” and what comprises deceitful means..What has changed?.For Senior Advocate Sidharth Luthra, Section 69 seems like an exception to the new rape provision contained in Section 63 of the BNS. “Let me put it this way. If there's intercourse without consent, then it's rape. But if there's intercourse with consent, but the consent is obtained by fraud, then it is (Section) 69,” he says.The senior lawyer, however, asks, “Is it logical to say sexual intercourse is not a modern thing? I think Section 69 needs clarity.".Advocate Dhruv Gupta, on the other hand, thinks that Section 69 of the present Bill is just an extension of Section 64 (punishment for rape). "In the earlier code, there was no separate specific Section punishing cases of sexual intercourse on account of false promises of marriage, and the same used to be made punishable by the dint of Section 375 and Section 90 of IPC,” he points out.Gupta further highlights that a consent clause was already there in Section 28 of the proposed law, akin to Section 90 of the previous code."So if consent is not there as per Section 28, it may amount to rape. But if it’s not the case and consent is taken on the ground of false promise of employment or marriage with mala fides intention, then it will fall in Section 69," he underscores..A departure from precedents?.While several cases of sex on the false promise of marriage have ended in prosecution, the Supreme Court and the High Courts have time and again made a distinction between mere breach of promise and a false promise to marry.In January, the Supreme Court held it was not correct to treat every breach of promise to marry as a false promise and thereby prosecute a person for the offence of rape.The Division Bench of Justices Ajay Rastogi and Bela M Trivedi had importantly noted,“One cannot deny a possibility that the accused might have given a promise with all seriousness to marry the prosecutrix, and subsequently might have encountered certain circumstances unforeseen by him or the circumstances beyond his control, which prevented him to fulfil his promise.”.When a similar issue cropped up before the Bench of then Justice DY Chandrachud, the Court held in Pramod Suryabhan Pawar v. State Of Maharashtra on August 21, 2019,“There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently.”.Similarly, several High Courts have dealt with the issue. In a recent decision, the Madhya Pradesh High Court quashed a rape case stemming from the same issue. In February, the Calcutta High Court acquitted a man facing a similar charge, while noting,“In plethora of judgments of Supreme Court and High Court have held that consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact.” The new provision in the BNS fails to provide clarity on this distinction..In Gupta’s opinion, though a separate provision has been created dealing with the offence, the law governing Section 69 would more or less remain the same as held by the Supreme Court in various cases while dealing with Section 375 read with Section 90 (consent known to be given under fear or misconception) of the IPC.“In this regard, the law laid down in cases like Uday v. State of Karnataka, Dileep v. State of Bihar, etc., would be of great importance while dealing with Section 69,” he believes..Criminal lawyer Utkarsh Singh, however, feels the Bill fails to address the issue of gender justice when it comes to Section 69. “There are considerable instances where a man is dumped after a long sexual relationships resulting in chronic depression and sometimes suicide. The Bill miserably fails to address the issue. Justice has to be a two-way road,” he argues.