For decades, criminal courts in India have grappled with a singular, messy question: When does a broken promise to marry turn into a crime? Under the Indian Penal Code this was usually dealt under Section 375, specifically relying on the "misconception of fact" clause. The courts were often forced to fit complex relationship dynamics into the rigid framework of rape laws.
The Bharatiya Nyaya Sanhita attempts to fix this by carving out a specific niche. Section 69 introduces a distinct offense i.e sexual intercourse by employing "deceitful means," which includes the false promise of employment, promotion, or marriage.
On paper, this looks like clarity. It distinguishes between non consensual forcible rape (Section 64) and consensual acts obtained through manipulation (Section 69). However this new section doesn't solve the evidentiary chaos, it merely recategorizes it.
Under the IPC regime, if a man was found guilty of obtaining consent for sexual intercourse via a false promise of marriage, he was technically labeled a rapist. Section 69 of the BNS treats this differently. It explicitly states that the offense applies to sexual intercourse "not amounting to the offence of rape."
The legislature has essentially created a middle ground. It acknowledges that while obtaining consent through lies is criminal , it perhaps should not carry the same label or weight as forcible rape.
The Intent Trap: How do you prove intent?
Section 69 hinges on "deceitful means." In the context of a promise to marry, the Supreme Court has long distinguished between a breach of promise and a false promise. In landmark judgments like Pramod Suryabhan Pawar v. State of Maharashtra, the Court held that for the act to be criminal, the maker of the promise must have had no intention of fulfilling it at the very moment the promise was made.
If a man promises marriage, enters a relationship, but two years later breaks it off due to parental opposition or incompatibility, that is a breach of contract not a crime.
Section 69 does not remove this grey area. The police and courts will still have to conduct a forensic examination of a relationship timeline. They will have to sift through WhatsApp chats, photographs, and testimonies to answer an almost impossible question: Did he plan to cheat her from Day 1 or did the relationship just fail?
The Risk of Criminalizing Breakups
There is a valid concern regarding the "false promise of employment or promotion" included in the same section. While this seems straightforward, a boss coercing a subordinate is a clear abuse of power but the inclusion of "marriage" is socially complex. Relationships are fluid. People fall in and out of love. By codifying the "promise to marry" as a specific ground for criminal liability, there is a risk that the BNS may inadvertently criminalize messy breakups. If a consensual relationship of three years ends, and one party feels aggrieved, the threat of Section 69 could be used as leverage.
While the BNS clarifies that this is not rape, it still subjects the accused to the criminal process, arrest, and trial. The burden will likely fall on the accused to prove that their initial promise was genuine, flipping the traditional burden of proof in the eyes of the public, if not the law.
Section 69 is a pragmatic recognition that sexual consent can be vitiated by lies not just force. It saves the accused from the stigma of a "rapist" tag for what is essentially a fraud while still offering a remedy to the victim.
However, the statute cannot fix the messy reality of human relationships. Unless the judiciary sets a very high threshold for what constitutes "deceitful means", strictly separating calculated fraud from unfortunate breakups. Section 69 risks becoming a tool for settling personal scores rather than delivering justice. The law has changed but the difficulty of the trial remains exactly where it was.
Author is an Advocate practicing at Jammu & Kashmir and Ladakh High Court. Views are personal.