How False Promise to Marry Cases are Treated in the New Criminal Law Bill
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How False Promise to Marry Cases are Treated in the New Criminal Law Bill

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The issue of false promises to marry and its implications under the criminal law framework has been a topic of discussion in India. With the proposed Bharatiya Nyaya Sanhita (BNS), 2023, which aims to replace the Indian Penal Code, 1860, the offense of 'sexual intercourse on false promise of marriage' is being addressed separately for the first time. This article delves into the 'deceitful means' clause in the BNS and examines how courts have previously dealt with similar cases.

Section 69: Offenses Against Women and Children

Chapter 5 of the Bharatiya Nyaya Sanhita (BNS), 2023, titled "Offenses against woman and children," includes provisions related to 'sexual intercourse by employing deceitful means etc.' Section 69 of the proposed Bill creates two violations: one by deceitful means and one by a 'false promise to marry.' Deceitful means encompass false promises of employment or promotion, inducement, or marrying after suppressing identity. On the other hand, the false promise to marry offense is applicable when a man intentionally makes a promise to marry a woman, with the intention of breaking it, in order to obtain her consent and sexually exploit her. Both offenses carry a penalty of up to ten years of imprisonment.

"For the first time, intercourse with women under the false promise of marriage, employment, promotion, and false identity will amount to a crime." - Home Minister Amit Shah

Previous Treatment of 'False Promise to Marry' Cases

Before the introduction of the BNS, cases involving false promises to marry were dealt with through a joint reading of Sections 375 and 90 of the Indian Penal Code (IPC). Section 375 defines rape and includes seven types of consent, which would amount to rape if violated. This includes sexual intercourse without consent or consent obtained through fear, deception, or intoxication. In these cases, courts have relied on these provisions to address offenses related to false promises to marry.

In 2016, a quarter of the total rape cases registered in Delhi pertained to sex under "false promise of marriage."

In such cases, consent plays a crucial role. The Supreme Court has emphasized that a woman's consent must involve an active and reasoned deliberation towards the proposed act. However, there have been instances where courts have questioned a woman's ability to trust the promise of marriage based on factors such as age, sexual history, and marital status.

Interpretation of 'False Promise to Marry'

To differentiate between a 'false promise' and a 'breach' of promise, courts analyze the intention of the accused to marry at the time of engaging in sexual relations. If the promise was false from the beginning, with no intention of fulfilling it, it disregards the woman's consent and constitutes rape. However, if the promise was made in good faith but subsequently not fulfilled due to unforeseen circumstances, it may not be legally punishable.

"The court must examine whether the complainant had actually wanted to marry the victim or had made a false promise to satisfy his lust." - Supreme Court

The distinction between a false promise and a breach of promise is crucial. A false promise is made with the understanding that it will be broken, while a breach of promise is made in good faith but cannot be fulfilled. In 2022, the Supreme Court held that consensual sex on a 'genuine' promise of marriage does not constitute rape.

Judicial Precedents and Critiques

Courts have dealt with various 'false promise to marry' cases, each with its own set of circumstances. In a Karnataka court case, it was ruled that educated women in pre-marital relationships cannot claim rape after the relationship ends, as they are considered 'mature' enough to understand the consequences. However, the Aurangabad bench of the Bombay High Court recognized the refusal to marry based on caste as a false promise, highlighting the complexities of such cases.

"False promises to marry cases are dealt with under the 'misconception of fact' clause, raising questions about the interpretation of consent." - Legal scholars

Critics argue that the current legal framework promotes restrictive ideas about women, marriage, and consent. The focus on a woman's ability to trust and the reliance on caste-based arguments can hinder women's autonomy and re-victimize them. Legal scholars have also questioned the use of Section 90 of the IPC to interpret consent, considering that Section 375 already provides a definition.

The Politics of Proving 'Intention' to Marry

The issue of proving 'intention' to marry raises two central questions: how consent is obtained and whether the man ever intended to fulfill the promise of marriage. The Supreme Court acknowledges that circumstances may prevent the fulfillment of a promise, but activists argue that these circumstances often reinforce social norms, gender roles, and caste lines. The BNS, in its current form, does not dissolve the confusion between 'false promise' and 'breach of promise,' and overlooks the limitations of criminal law pointed out by feminist and anti-caste activists.

"The Bill empowers a cycle where the consequences of crime are specified, but the consequences of harm, which women bear, are overlooked." - Surbhi Karwa, Lawyer

Critics also highlight that the law promotes endogamy and shifts the conversation away from addressing the real harm and abuse that women face. The reliance on caste norms and character assassination of women further perpetuate inequality. They argue that such cases should go beyond criminal law to provide reprieve to women through civil damages.

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The inclusion of a separate offense for 'sexual intercourse on false promise of marriage' in the proposed Bharatiya Nyaya Sanhita (BNS), 2023, reflects a growing recognition of the complexities surrounding consent and sexual exploitation. While the BNS addresses this issue, there remain concerns about the interpretation of consent, the burden of proof on women, and the perpetuation of social norms. It is essential to continue the dialogue and strive for a legal framework that protects the rights and autonomy of individuals while addressing the harm caused by false promises to marry.

Disclaimer: The information provided in this article is for informational purposes only and should not be construed as legal advice. Please consult with a qualified legal professional for any legal concerns related to false promises to marry or other legal matters.

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