On the crime of ‘false promise to marry’

On the crime of ‘false promise to marry’

What is the ‘deceitful means’ clause in the Bharatiya Nyaya Sanhita, 2023? How have courts previously dealt with cases of consent and rape under the Indian Penal Code?

Are cases of ‘false promise to marry’ and a ‘breach of promise’ the same?

Introduction

If a man promises to marry a woman but never intends to, and still has ‘consensual’ sex with her, it will amount to a criminal offence under Section 69 of the proposed Bharatiya Nyaya Sanhita (BNS), 2023. The Bill, which seeks to replace the Indian Penal Code (IPC), 1860, identifies ‘sexual intercourse on false promise of marriage’ as an offence.

What does Section 69 say?

Chapter 5 of the Bill, titled “Offences against woman and children” describes ‘sexual intercourse by employing deceitful means etc.’ Section 69 creates two violations: one by deceitful means, and one by a ‘false promise to marry.’ Deceitful means will include the “false promise of employment or promotion, inducement or marrying after suppressing identity.” The false promise to marry will be attracted only when a man makes a promise to marry a woman, with the intention of breaking it, for the purpose of getting her consent and sexually exploiting her. Both offences will extract a penalty of up to ten years of imprisonment.

How has the IPC dealt with cases of ‘false promise to marry’?

BNS penalises those coercing women into sexual relationships. Previously these cases were dealt with through a joint reading of Sections 375 and 90 of the IPC. Section 375, which defines rape, further defines consent as “an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or nonverbal communication, communicates willingness to participate in the specific sexual act.” Explanation 2 of Section 375 also lists seven types of consent which would amount to rape if violated; these include if a man has sexual intercourse with a woman “without her consent,” or consent taken through fear of death, hurter intoxication. In 2021, the Supreme Court reiterated that under Section 375, woman’s consent “must involve an active and reasoned deliberation towards the proposed act”.

                       Section 90 says consent, given under “fear of injury” or “misconception of fact,” cannot be considered as consent. Cases of false promise to marry are dealt with under the latter, where a ‘misconception’ is used to assess the validity of consent. Legal scholars have questioned the use of Section 90 to interpret consent, given that Section 375 already lays out a definition.

What is the difference between ‘false promise’ and ‘breach of promise’?

The law has distinguished between a ‘false promise’ and a ‘breach of promise ‘on the basis of proving if the man intended to marry at the time of engaging in sex. Courts have previously recognised the ambiguity in determining consent and intention in such cases. The SC observed that a false promise is “given on the understanding by its maker that it will be broken,” but a breach of promise is “made in good faith but subsequently not fulfilled.” Put simply, if a man can prove he intended to marry the woman before he entered into a sexual relationship, but later is unable to due to whatever reason, it is not legally punishable. The Supreme Court in 2022 held that consensual sex on ‘genuine’ promise of marriage does not constitute rape.

                       “The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception,” the Supreme Court said.

How is intention to marry proved?

Cases of ‘false promise of marriage’ look at two central issues — how consent is obtained (through deceitful means, or by misconception), and whether the man ever intended to marry the woman. The Supreme Court this year said every breach of promise is not rape, noting: “One cannot deny a possibility that the accused might have given a promise with all seriousness to marry her, and subsequently might have encountered certain circumstances unforeseen by him or the circumstances beyond his control, which prevented him.”

                          The law promotes endogamy and shifts the conversation away from the real harm and abuse that women face, as researchers has pointed out.

The judgment in Uday versus State of Karnataka (2003) became the basis for several future outcomes. A woman from an OBC caste accused a Brahmin man of raping and impregnating her. The man promised to marry her but later reneged on the promise. A Supreme Court Bench ruled against rape, saying there was no evidence to show a lack of intention; instead, since the parties belonged to ‘different castes,’ the victim had to be ‘clearly conscious’ of the ‘stiff opposition ‘the relationship would face, and this wasn’t a case of misconception.

**Author: Surya Pratap Singh, A student at Bareilly College Bareilly