File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Section 69 BNS: Flaws Flourish, Functionality Falters

It is a well-established principle of law that laws should be made for the general welfare of the whole society. This principle asserts that laws and policies should be enacted with the collective benefit and well-being of society as a whole in mind, rather than serving the interests of specific individuals or groups. It's a fundamental tenet of many legal and political philosophies, emphasizing the importance of fairness, equity, and justice for all members of a community.

Article 15 of the Indian constitution states the Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth. It delineates that the state should not make any provision that discriminates between two individuals on the basis of their sex, religion, race, etc. Article 14 of the Indian constitution states Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

The principle of equal protection under Article 14 does not mandate uniformity in laws for all individuals. It acknowledges that varying circumstances may necessitate different legislative approaches. In the context of a diverse society, the concept of Reasonable Classification emerges, stipulating that classifications must be based on intelligible differences and must bear a rational relationship to the objective sought to be achieved by the legislation.

Therefore, the concept or the legal principle of The General Welfare has been solidified under the Indian constitution by these two articles. However, the forthcoming Bharatiya Nyaya Sanhita, slated to replace the Indian penal code effective July 1, 2024, has thoroughly dismantled these two articles and has ultimately violated the principle of the general welfare. Its Section 69 reads as follows-

Sexual intercourse by employing deceitful means, etc.
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 after suppressing identity.

This section clearly discriminates between men and women as it assumes that only a man can make a false promise of marriage to a woman to have sexual intercourse with her and the woman can do no such wrong. This is a very archaic and mindless take by the framers of the BNS as in modern society both men and women have the ability and prowess to do such an act. They are of the opinion that women cannot wield authority to coerce a man into sexual activity under the guise of marriage or offering employment, this makes this law inherently gender biased and prejudicial towards men.

Earlier these cases were dealt with through a joint reading of Sections 375 and 90 of the IPC

Section 375 of the IPC defined rape and gave the conditions when sexual intercourse between a man and a woman will amount to rape, further, it defined consent as "an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or nonverbal communication, communicates a willingness to participate in the specific sexual act." although this section was exhaustive in nature, sexual intercourse on the false pretext of marriage was included in it by various interpretations of many courts. Even though it was nowhere mentioned in the section, now with the new BNS a dedicated section has been made out of this.

The reason behind criminalizing sexual intercourse on the false promise of marriage seems to be quite primitive and retrograde as it originates from the notion of protecting the virginity of a woman till her marriage. The criminalization of sexual intercourse based on false promises of marriage, while rooted in historical contexts, primarily aimed to safeguard the perceived purity and virtue associated with a woman's virginity until marriage. In traditional societies, a woman's chastity was often considered a crucial aspect of her worth and honor, with her virginity symbolizing her moral integrity and suitability as a spouse. Thus, laws addressing sexual relations within the framework of marriage were crafted to uphold societal norms and expectations regarding female modesty and fidelity.

By penalizing individuals who exploit women's trust and consent under the guise of marriage, these laws sought to prevent the perceived moral and social harm resulting from the defilement of a woman's chastity outside of wedlock. Furthermore, such measures were designed to deter potential offenders from engaging in deceitful behavior to manipulate women into sexual relationships without genuine commitment or intention to marry, thereby preserving the sanctity of marriage and upholding societal values surrounding sexual morality.

However, as Indian society has evolved, this concept has largely fallen into obsolescence, with a diminishing significance attributed to virginity in contemporary perspectives. So the lawmakers should have taken this factor into account before framing this section, this law implies that adult women lack agency over their own bodies and dignity, as they may succumb to demands or inducements for sexual favors based solely on promises of marriage, employment, or promotion. This not only reflects a highly regressive stance but also disregards fundamental principles of will and consent, critical aspects to be addressed in matters concerning sexual offenses.

Can the intention to marry be proved?
Cases involving the "false promise of marriage" entail an examination of two primary facets: the method by which consent is obtained, which may involve deceitful tactics or misconceptions, and the determination of whether the individual making the promise harbored genuine intentions to marry the woman in question.

In the case of Naim Ahamed vs. State (NCT of Delhi) (2023 SCC Online SC 89), the Supreme Court held that the prosecutrix, being a married woman and the mother of three children, demonstrated a level of maturity and intelligence sufficient to comprehend the significance and ramifications of the moral or immoral nature of the act to which she was consenting.

Further, the Supreme Court bench of justices Sanjay Kishan Kaul and Sudhanshu Dhuliawhile hearing an appeal filed against a Madhya Pradesh high court order of April 18, 2023, remarked "Either you live by more conventional standards or choose your own ways of living. In metropolitan towns, many young people are choosing the latter. So far as it is consensual and between adults, there is no problem. But when you choose to live by your own standards, you should also be ready to face all the possible consequences,".

Rampant Misuse
According to 2016 data from the Delhi Police, a significant portion, specifically a quarter, of all reported rape cases in Delhi involved instances categorized as "sex under the false promise of marriage." Similarly, data from the National Crime Records Bureau for 2016 revealed 10,068 cases of rape perpetrated by "known persons on a promise to marry the victim," a notable increase from 7,655 cases reported in 2015.

In December 2021, a sessions court in Ahmedabad, Gujarat, acquitted a man of rape charges based on false promises of marriage, as filed by a woman with whom he had a live-in relationship. The court noted that the woman's choice to engage in a live-in relationship with the accused, despite being aware of his marital status, indicated her full understanding of the moral implications of her actions, portraying her as a willing and consenting partner. The court concluded that sexual intercourse between the couple, conducted with the victim's consent, did not meet the criteria for rape. Additionally, the woman who filed the case had been married three times previously without obtaining a divorce from any of her spouses, yet she alleged that the man had deceived her with a false promise of marriage.

Considering the existing misuse of the provision on rape based on false promise of marriage the government should have conducted thorough deliberation before introducing a new law.

In light of the profound societal implications and complexities surrounding laws addressing sexual offenses, it is imperative for legislative bodies to exercise judicious deliberation and caution. The introduction of Section 69 of the Bharatiya Nyaya Sanhita (BNS), criminalizing sexual intercourse on false promises of marriage, underscores the critical need for comprehensive examination and thoughtful consideration of existing legal frameworks.

While the intention behind such legislation may aim to address genuine concerns of exploitation and deceit, the potential for unintended consequences and misuse demands careful scrutiny. The principle of equal protection under the law, as enshrined in Article 14 of the Indian Constitution, necessitates that legislative measures uphold fundamental principles of fairness, equity, and justice for all members of society.

Furthermore, the evolving societal norms and changing perceptions regarding gender dynamics underscore the importance of ensuring that laws are not only just but also reflective of contemporary realities. The recent acquittal in the Ahmedabad sessions court case serves as a poignant reminder of the nuanced nature of consent and the complexities inherent in adjudicating cases involving sexual relationships.

The government should have undertaken thorough deliberation before introducing a new law, especially considering the potential for misuse of existing provisions addressing rape on false promises of marriage. Given the complexities and sensitivities surrounding matters of sexual assault and consent, it is crucial for lawmakers to engage in comprehensive consultation, evaluation of existing legal frameworks, and analysis of societal implications before enacting legislative reforms.

In this context, conducting thorough research, consulting legal experts, and engaging with stakeholders such as advocacy groups, civil society organizations, and survivors of sexual violence would have been essential steps in assessing the necessity and appropriateness of introducing a new law. Additionally, exploring alternative approaches, such as amending existing provisions to address loopholes or enhancing mechanisms for ensuring fair and just implementation, could have been considered to mitigate the potential for misuse while still safeguarding the rights and dignity of individuals affected by sexual offenses.

In moving forward, it is imperative for policymakers to engage in robust dialogue with legal experts, stakeholders, and affected communities to craft legislation that is not only effective in addressing societal concerns but also mindful of safeguarding individual rights and liberties. By fostering a collaborative and inclusive approach to law-making, we can strive towards a legal framework that is both responsive to the needs of society and respectful of the principles of justice and equality.

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers

Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


How To File For Mutual Divorce In Delhi


How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Increased Age For Girls Marriage


It is hoped that the Prohibition of Child Marriage (Amendment) Bill, 2021, which intends to inc...

Facade of Social Media


One may very easily get absorbed in the lives of others as one scrolls through a Facebook news ...

Section 482 CrPc - Quashing Of FIR: Guid...


The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of t...

The Uniform Civil Code (UCC) in India: A...


The Uniform Civil Code (UCC) is a concept that proposes the unification of personal laws across...

Role Of Artificial Intelligence In Legal...


Artificial intelligence (AI) is revolutionizing various sectors of the economy, and the legal i...

Lawyers Registration
Lawyers Membership - Get Clients Online

File caveat In Supreme Court Instantly