False Promise To Marry

Section 69 of the Bharatiya Nyaya Sanhita, 2023 ('BNS') criminalises sexual intercourse by employing deceitful means. The language of the provision refers to two separate actions: first, using deceptive means to engage in sexual intercourse, and second, making a false promise to marry a woman without the intention of fulfilling it. Earlier, in the absence of an explicit provision in the Indian Penal Code, 1860, Section 90 (consent given under fear or misconception) read with Section 375 (rape) was used to charge false promise of marriage as rape. Section 69, now, not only prescribes a lower punishment than rape but also classifies sexual intercourse by deception as a separate, lesser offence. While the status of a separate offence may be seen as a positive development towards explicitly recognising a common issue, Section 69, due to its framing and interpretation, has had a counterproductive effect from both a harm-oriented and agency-oriented perspective.

The root of the problem is imprecision. A provision criminalising sexual intercourse by employing deceitful means as a separate and lower offence than rape requires clarity in terms of scope, intent and application. Instead, Section 69 has created ideal conditions for perpetuating regressive notions relating to women's behaviour that already abound in Indian rape jurisprudence. At the same time, despite its broadened scope, it signifies lost potential in the articulation of the modes through which consent can be obtained deceitfully.

Misplaced Concern

From a harm-oriented perspective, which would advocate harsh punishment and adequate legal redressal for harm suffered, codification admittedly provides recourse to women aggrieved by sexual intercourse based on deceitful pretences and allows for greater clarity in terms of punishment. However, while it recognises an exploitative practice, it diminishes the status of an act that, in several circumstances, legally constitutes rape. This not only opens avenues for the redirection of several rape cases to a lesser offence based on moral judgements of premarital sexual relations but additionally speaks to two concerning realities. First, only misconception of fact within the sphere of marriage, in a very specific context, is technically still considered rape under Section 63(d)(iv). Second, since in such cases parties are acquainted with each other and women exercise sexual autonomy, the 'violent stranger rape' paradigm remains the quintessential form of rape in criminal legal imagination. As the trajectory in India has been so far, violence and brutality are decisive indicators of rape. Acquaintance rape and anything akin to it (like deception between sexual partners) is disqualified from the legal imagination of rape. This is harmful considering that most rapes are perpetrated by men known to women and that false promise to marry cases inevitably fall within this less-favoured acquaintance-rape category.

The legislature's misplaced, although welcome, intent was to mitigate confusion caused by the lack of a provision on false promise to marry, which prevented women from seeking redress. This “confusion”, however, cannot be attributed to a lack of legal recourse due to the absence of an explicit provision. Rather, it was caused by inconsistent application of the law to cases suffused with social mores that reinforced intracaste, intrafaith, patriarchal notions of marriage. The case of Maheshwar Tigga v. State of Jharkhand AIR 2020 SC 4535 is a pre–BNS example of notions of faith and ideal behaviour weighing negatively on the legal determination of whether a case of false promise to marry had been made out. Due to myopic interpretation, Section 69 is still susceptible to courts' judgement of a woman's conduct and of becoming a site for replication of trauma, disbelief, and stigmatisation, which counterproductively act as deterrents from seeking legal redressal.

Looking Backwards

Equally, from an agency-oriented perspective, which would prioritise women's sexual autonomy even if that means renouncing the deterrent communicative label of 'rape', a separate provision pedestalises the offence through codification and entrenches women's perception as agency-deprived victims. Although Section 69 disassociates from perceived dignitary harms imported with the title of 'rape' the application of this provision reveals continued honour-centric essentialisation of women. The judiciary's natural reliance on false promise to marry cases adjudicated as rape under the IPC, given India's troubling jurisprudence on false promise to marry, has led to a seamless spillover of harmful notions of women's sexual and bodily autonomy in cases brought under Section 69 so far.

The interpretation of the longevity of relationships as indicative of a woman's consent is but one example. The Supreme Court observes in paragraph 27 the oft-cited case of Mahesh Damu Khare v. State of Maharashtra 2024 INSC 897:

“In our opinion, the longer the duration of the physical relationship between the partners without protest and insistence by the female partner for marriage would be indicative of a consensual relationship rather than a relationship based on false promise of marriage by the male partner and thus, based on misconception of fact”.

Here, not only has the onus of “protest and insistence” been placed on the woman, but the lens is shifted away from the vitiation of consent due to a false promise to gendered and presumptive indicators of consent during the subsistence of the relationship. Additionally, other factors pertaining to rape have seeped into Section 69 trials, including the exclusion of transgender women.

Given the charged nature of false promises to marry, the harm-oriented and agency-oriented perspectives are actually far from competing. They serve as mutually co-constitutive indicators of why a unified solution to this complex problem has led to cyclical insufficiency.

Beyond False Promises of Marriage

The Legislature's sole emphasis on false promises of marriage (inferred from the limited articulation of intent available publicly) also stifles important inquiry into the other kinds of deception that qualify for various forms of criminal liability. Despite the distinction between the aforementioned two elements in Section 69, the provision has been interpreted to deal solely with false promises of marriage. This, seen in an overwhelming majority of the cases brought under this Section since its enforcement, creates an interpretive limitation and disregards the tremendous potential that this new Section reflects in allowing for legitimate recognition of exploitative deception while avoiding overcriminalisation.

As Professor Wing-Cheong Chan has highlighted, one of the possible ways of ensuring clarity is by demarcating the kinds of deception that vitiate consent, such that it can be characterised as rape, leaving others as part of a lesser offence. The Singaporean approach delineates the bounds of serious criminal liability such that only cases where the woman is mistaken about the nature or purpose of the sexual act or the identity of the defendant constitute rape, while other types of deception, such as lying about the likelihood of pregnancy, obtaining sexual services without payment etc., constitute a lesser offence. This could be used as inspiration for an approach tailored to India.

The Need for Clarity

Whatever the next steps may be, it is essential to recognise that deception has varied effects on consent. While in some cases it may incline towards misconception rather than sexual violence, in others it may vitiate consent by obliterating the prosecutrix's capacity to make an informed choice. A unidirectional response is unsuited to the unruly nature of false promises to marry, which demands attention towards both redressal and sexual autonomy.

We must begin by viewing Section 69 as an opportunity to deviate from the regressive false promise to marry jurisprudence and to clarify the “confusion” around the criminalisation of deceitfully obtained consent. Presently, the provision's simultaneous recognition and demotion of the act without proper justification or guidance is symptomatic of prematurity in relation to an issue that demands deeper inquiry and clearer articulation. Veering away from the troublesome history of false promise to marry requires intentional, specific, and clear efforts. Reimagining the offence of sexual intercourse by employing deceitful means would then entail both redefining and moving beyond the confines of false promise to marry.

Author is a Law student at National Law School of India University, Bangalore. Views are personal.