INTRODUCTION:
The recent uproar in the legal community on social media stems from the introduction of three bills in Parliament: the Bharatiya Nyaya Sanhita Bill, Bharatiya Nagarik Suraksha Sanhita Bill, and Bharatiya Sakshya Bill. These bills are slated to replace the foundational criminal law documents in India—the Indian Penal Code, 1860 (IPC)[1], Code of Criminal Procedure, 1973 (CRPC)[2], and the Indian Evidence Act, 1872[3].
While many provisions in these proposed “Sanhitas” and “Adhiniyams” mirror those in the existing “Codes” and “Act,” one section, in particular, has sparked off an extensive debate, that is Section 69 of the Bharatiya Nyaya Sanhita.[4]
Clause 69 says that if a man promises to marry a woman but does not actually intend to marry her, and still has consensual sex with her, this will amount to a criminal offence. Sex under deceitful means or false promises to marry, may be punished with a prison term that can extend up to 10 years and a fine. With this a separate section has been carved out, differentiating these cases from rape cases. Deceitful means, as outlined, encompass instances such as the “false assurance of employment or promotion” and the act of misleading someone by concealing one’s true identity to induce marriage.[5]
Whereas in false promises of marriage, it is specifically applicable when a man deliberately commits to marry a woman, with the deceptive intention of reneging on that promise. This deceptive act aims to gain the woman’s consent under pretences, ultimately leading to sexual exploitation.
HOW DOES BHARATIYA NYAYA SANHITA DIFFER FROM AN EXISTING IPC PROVISION AND WHAT ALTERATIONS HAVE BEEN MADE:
The newly proposed provision, Section 69 of the Bharatiya Nyaya Sanhita (BNS)[6], introduces a nuanced approach in addressing cases of sexual intercourse obtained through deceitful means, distinct from the existing Indian Penal Code (IPC) provision, particularly Section 493.
Section 493 [7]of the IPC pertains to deceiving a woman into believing she is lawfully married, inducing her to cohabit or engage in sexual intercourse. The new provision in the BNS, Section 69, seems similar but holds differences in its application. It outlines instances where deceit is employed, leading to sexual intercourse, but specifically excludes situations amounting to the offence of rape. The crucial difference lies in the definition of deceitful means and the scope of sexual exploitation without constituting rape. This new provision highlights that if sexual intercourse occurs with consent obtained through fraud, it falls under Section 69 rather than being considered rape under Section 63 of the BNS.
Senior Advocate Sidharth Luthra observes this distinction by emphasizing that while rape involves intercourse without consent, Section 69 covers cases where consent is obtained deceitfully. However, he raises concerns regarding the need for clarity within Section 69 to avoid ambiguities or misinterpretations. Contrasting opinions emerge among legal experts regarding the necessity and implications of Section 69. Advocate Dhruv Gupta suggests that Section 69 is an extension of the punishment for rape, citing the absence of a specific provision in the previous law addressing sexual intercourse based on false promises of marriage. Gupta points out that the BNS contains a consent clause akin to Section 90 of the IPC.[8] As per his analysis, if consent is absent per Section 28[9] of the proposed law, it might constitute rape. However, if consent is obtained through deceitful means, like false promises of employment or marriage with malicious intent, it falls within the purview of Section 69[10], and so the introduction of Section 69 in the BNS aims to carve out a separate legal provision to address instances of sexual intercourse facilitated by deceit, distinct from the IPC’s provisions, emphasizing the crucial aspect of consent obtained under fraudulent pretences.
‘FALSE PROMISE TO MARRIAGE’ AND ‘BREACH OF PROMISE’:
Distinguishing between whether a promise of marriage is genuine or false largely hinges on the man’s intent at the time of engaging in sexual intercourse. This assessment of intent often poses a significant challenge for courts, adding complexity to such cases.[11]
For example: If a man made a promise of marriage with sincere intentions, but unforeseen circumstances prevented him from fulfilling that commitment, the legal standpoint wouldn’t classify it as a ‘false promise.’ In such instances, the crux lies in differentiating between an intentional deceit and a genuine intention thwarted by unforeseen events. The difficulty arises in discerning the actual intent of the individual making the promise at the time when the promise was made. Courts often confront the intricate task of delving into the individual’s state of mind, trying to ascertain whether there was a deliberate intent to deceive or if the promise was genuinely made to honour it, even if unforeseen circumstances later prevented its fulfilment.
This intricacy underscores the challenges in adjudicating cases where promises of marriage are involved. The legal system faces the daunting task of unravelling the intricacies of human intentionality, especially when it comes to deeply personal matters such as relationships and commitments, where intentions may be subject to change due to various unforeseen circumstances.
ENABLING WOMEN’S EMPOWERMENT THROUGH SECTION 69:
Combating Deceptive Practices: Section 69 of the Bharatiya Nyaya Sanhita (BNS) [12]emerges as a crucial safeguard against deceptive practices, providing a legal framework that offers recourse to women who might fall prey to false promises. By criminalizing actions involving deceitful means, this provision aims to empower women, allowing them to make informed choices in various facets of their lives. Section 69 of the BNS serves as a protective shield, offering affected women an effective remedy in such situations.
Unveiling Concealed Identities: The comprehensive interpretation of “deceitful means” encapsulated within Section 69 of the BNS [13] extends to scenarios where individuals deliberately mask their true identities. [14] This facet of the provision gains significance in cases where women might find themselves in relationships founded upon misinformation and fraudulent practices.
CONCLUSION:
In my opinion, section 69 mentioned in the Bhartiya Nyaya Sanhita Act, is an active approach and initiative for empowering the status of women in our society and protecting their chastity to promote justice, and equality and reduce the violence abuse rate against them. Anticipation surrounds a potential overhaul in India’s criminal justice system with the proposed law, promising a more equitable, effective, and responsive framework aligned with the demands of the populace. However, this transformative new code remains in the draft stage, necessitating implementation and undergoing essential revisions.
The suggested amendments to the Bhartiya Nyaya Sanhita signify a concerted endeavour to modernize the Indian legal system, ensuring its enhanced responsiveness to contemporary challenges and bolstering its overall effectiveness. Yet, before it gains approval in Parliament, an extensive process of discussions and consultations with various stakeholders and legal experts must unfold.
Author(s) Name: Nikita Sonker (Amity University, Lucknow)
Reference(s):
[1]Nikita Sonker, The Indian Penal Code, 1860 (6 October 1860).
[2]Nikita Sonker, Code of Criminal Procedure, 1973 (1 April 1974).
[3]Nikita Sonker, The Indian Evidence Act, 1872 915 March 1872).
[4]Nikita Sonker, Section 69 of Bharatiya Nyaya Sanhita, 2023 (1 July 2024)
[5]Nikita Sonker, ‘Unveiling Justice: Section 69 of The Bharatiya Nyaya Sanhita’, (JudiX, 15 September 2023) <https://www.myjudix.com/post/section-69-bns-section-69-of-bharatiya-nyaya-sanhita-bare-act-new-ipc> accessed 5 January, 2024.
[6]Nikita Sonker, Section 69 of Bharatiya Nyaya Sanhita, 2023 (Sexual intercourse by employing deceitful means, etc)
[7]Nikita Sonker, Section 493 of The Indian Penal Code, 1860 (Cohabitation Caused by a Man Deceitfully Inducing a Belief of Lawful Marriage).
[8]Nikita Sonker, ‘Unveiling Justice: Section 69 of The Bharatiya Nyaya Sanhita’, (LinkedIn, 12 October 2023) <https://www.linkedin.com/pulse/crime-false-promise-marry-nitika-gupta/> accessed 6 January 2024.
[9]Nikita Sonker, Section 28 of Bharatiya Nyaya Sanhita, 2023 (Consent known to be given under fear or misconception).
[10]Nikita Sonker, Section 69 of Bharatiya Nyaya Sanhita, 2023 (Sexual intercourse by employing deceitful means, etc)
[11]Nikita Sonker, ‘Unveiling Justice: Section 69 of The Bharatiya Nyaya Sanhita’, (Civilsdaily, 11 September 2023) <https://www.civilsdaily.com/news/nyaya-sanhita-false-promise-of-marriage/> accessed 5 January 2024
[12] Nikita Sonker, Section 69 of Bharatiya Nyaya Sanhita, 2023 (Sexual intercourse by employing deceitful means, etc)
[13]Nikita Sonker, Section 69 of Bharatiya Nyaya Sanhita, 2023 (Sexual intercourse by employing deceitful means, etc)
[14]Nikita Sonker, ‘Unveiling Justice: Section 69 of The Bharatiya Nyaya Sanhita’, (JudiX, 2 January 2023) <https://www.myjudix.com/post/section-69-of-bharatiya-nyaya-sanhita-bns-insights-section-69-bns-can-be-useful-for-victims> accessed 6 January, 2024.
