ABSTRACT
Bharatiya Nyaya Sanhita was introduced on 11 August 2023 and received President’s assent on December 25, 2023 to replace Indian Penal Code. It will become effective from July 1, 2024 replacing Indian Penal Code which has been a backbone of our criminal justice system for more than 6 decades. BNS will effectively replace IPC, a well drafted code by Mcaulay. Though IPC was a good law, yet it is being replaced by BNS to adapt to Indian situation and new emerging crimes. One such example of a new emerging crime is false promise of marriage. It has been noticed in few recent years that the rate of rape cases on the ground of false promise of marriage has been significantly increased. IPC did not provide any specific provision for an offence of intercourse on the pretext of marriage which has led to many controversial beliefs. This research paper analyses the provision relating to false promise of marriage under BNS and further provides the challenges faced by the Courts. It also gives suggestions regarding further improvement in the law and also defines the difficulties in the present times which will be reduced to some extent after BNS becomes effective with regard to false promise of marriage.
Keywords – false promise of marriage, rape, Bhartiya Nyaya Sanhita, Challenges, sexual intercourse, free consent
INTRODUCTION
The Latin word “rapio,” which meaning “to seize,” is where the English word “rape” originates. Put otherwise, rape is the act of ravishing a woman against her will, by force, terror, or deceit, without her consent. Rape is an outrage by all means because it violates a woman’s right to her intimate parts. Since the victim may suffer severe physical and emotional injuries that last a lifetime, it is regarded as the most serious crime. Matrimony is regarded as a legally acknowledged partnership between two people, granting them the freedom to carry out their responsibilities and indulge their sexual cravings.
As a result, marriage marks the start of a new family and a lifetime commitment from both parties. In the earlier days, marriages were mostly fixed by elders but the scenario has changed now. Court has also granted the right to adults to choose their life partner as per their choice and has also given them protection against the parents to restrict them or bound them. Indian Penal Code provides the laws pertaining to only rape and does not talk about the cases in which consent is there but it has been obtained on a false promise. This is not dealt with in the IPC. The court have has various contradicting beliefs regarding this offence. With the implementation of Bhartiya Nyaya Sanhita, this confusion will be eradicated as Sec. 69 of BNS clearly provides for the punishment of offence of false promise of marriage.
It was necessary to include this provision because of the development of society and because of the new cases which have arose on this one specific point. It can be further seen that with a law, comes many challenges and criticism regarding that law. A law is made to solve a problem but it creates another problem sometimes. This problem will also be discussed further in this research paper. Since many years, incidents of rape and marriage has been endlessly going. The phenomena of marital rape is something which has been brought about in many courts now. The harm done to the victim is not physical in this case but mental. It can be differentiated with rape on one ground which is consent. In the case of sexual intercourse on the pretext of false marriage, consent is there. This paper seeks to analyse the provision of false promise of marriage under BNS and to further shed light on its elements and challenges faced by the Courts. it also reflects a position of the offence under IPC and how it has been dealt till now.
RESEARCH METHODOLOGY
The research paper is analytical and descriptive in nature. The research is based on both primary and secondary resources for determining the offence of false promise of marriage under BNS. Primary source include the Bhartiya Nyaya Sanhita and secondary sources include newspapers, reports and some other articles. The research has been done from the online reliable sources.
REVIEW OF LITERATURE
1. Sexual intercourse based on false promise to marry, 2024.
This blog provides a detailed analysis on the position of false promise of marriage before the implementation of BNS. It provides judicial pronouncements and the way the judiciary has tackled such cases. It has also provided how these cases are dealt and under which section of IPC.
This research paper seeks to add the analysis of false promise marriage as an offence under Sec. 69 of BNS and provide essential elements for it.
2. How False Promise to Marry Cases are Treated in the New Criminal Law Bill, 2023.
This article provides how the offence of false promise of marriage is treated under BNS. It provides various analysis and the difference between false promise of marriage and breach of promise of marriage.
This research paper seeks to give an analysis of what was the position before BNS and how it has been treated till now. It also gives a distinction between how the position has changed now.
CONCEPT OF FALSE PROMISE OF MARRIAGE
It is necessary to understand what false promise of marriage is and what essentials of false promise of marriage are. False promise of marriage is a situation when a man takes the consent of the woman to have sexual intercourse by fraudulent intention and by making a promise to her that he will marry her if she agrees to do so but rather never has an intention to marry her. It is in nature of offence of rape but cannot be considered as rape as the consent has been taken here. A major difference takes place between rape and false promise to marry on the point of consent. In rape, the consent is not there. The consent here implies free consent. However, in the case of false promise to marry, consent is there but it is obtained by deceitful means and malafide intention.
Sec. 69 of Bhartiya Nyaya Sanhita provides for the offence of false promise to marry. It provides that, “Whoever, by deceitful means or by making promise to marry to a woman without any intention of fulfilling the same, has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.” The explanation to this section provides that “deceitful means” shall include inducement for, or false promise of employment or promotion, or marrying by suppressing identity.
It can be seen that explanation sec. 69 provides a wider interpretation of the term deceitful means by expanding its meaning to employment and promotion also. But here, we will only look into the aspect of false promise to marry. Two infractions are established under Section 69 of the BNS: one is via dishonest tactics, and the other is by a “false promise to marry.” Deceitful means include inducing someone to marry after suppressing their identity or making false promises of job or promotion. The false promise to marry crime, on the other hand, is relevant when a guy purposefully makes a commitment to marry a woman, intending to violate it, in order to get her permission and take advantage of her sexually. The maximum sentence for both crimes is ten years in prison.
Elements of false promise of marriage:
Based on the bare reading of section 69, it can be considered that there are 4 essentials of false promise to marriage. They are:
- Promise to marry
- No intention of marrying
- Having sexual intercourse based on that promise
- It does not constitute offence of rape
Promise to Marry
The first and necessary essential for offence under Sec. 69 is that there should be a promise to marriage. The man must have promised the woman that he will marry her. It is the first and the foremost requirement for a man to be held liable under sec. 69 of BNS. If no promise has been made to marry, then an offence cannot be constituted under Sec. 69 of BNS.
No intention of marrying
The second element of offence under sec. 69 is that there should be no intention to marry. There is a difference between breach of promise of marriage and no intention to marry. It is essential to establish that from the instance of making the promise, the accused had no intention of marrying the woman and it was a mere lie to obtain consent of woman.
Sexual intercourse based on that promise
It is also essential to establish that the sexual intercourse should be on the false promise to marry. It implies that the consent which has been obtained from woman should be on the basis that man has promised to marry her if she has sexual intercourse with her. So it is necessary that sexual intercourse should be result of that promise and nothing else.
Does not constitute offence of rape
The final element which is to be satisfied for the offence under sec. 69 is that the act should not constitute the offence of rape. It implies that the act should not fulfill the elements of rape. The consent of woman should be there. For example, if the man promises to marry, yet the woman refused to have sexual intercourse following which the man did the act without her consent will constitute an offence of rape and hence, it will not be punished under sec. 69 of BNS rather will be punished for rape.
POSITION OF FALSE PROMISE OF MARRIAGE BEFORE BNS
The BNS has not become effective yet but the offence of false promise to marriage is still in common parlance due to which courts have interpreted offence of rape under IPC as to include offence of false promise of marriage. Sec. 375 and Sec. 90 of IPC have been interpreted to include the offence of false promise of marriage. Sec. 375 provides for the offence of rape and sec. 90 of IPC provides for consent. Since no law explicitly punishes false promise of marriage currently, Courts have interpreted such offence to come under the definition of rape. This has been done by interpreting consent under Sec. 375 as free consent defined under Sec. 90 of IPC. Courts have interpreted free consent to mean the consent which has been obtained without any fraudulent and deceitful means. Hence, the consent obtained by false promise to marriage is deceitful in nature and does not constitute free consent leading the offence to be punishable under rape.
In the 2013 case of State of Uttar Pradesh v. Naushad, Section 90 was used. In this instance, the prosecutrix—Shabana’s father, the informant—was the paternal uncle of the accused Naushad. The informant claimed that Naushad used to frequently visit his home and persuaded her daughter to have sex with him on the basis of a pledge that he would one day wed her. The question raised by this case was whether Naushad could be found guilty of rape or not. According to Section 375 of the Indian Penal Code, the court found Naushad guilty of rape and sentenced him to life in jail.
JUDICIAL PRONOUNCEMENTS RELATING TO FALSE PROMISE OF MARRIAGE
Since BNS has not come into existence yet, there are no judicial pronouncements in relation with sec. 69 of BNS. But this offence has existed in the society for a few years now, due to which judiciary has used its power to crimialise the offence by interpreting consent as free consent under sec. 375 and has thus included the offence of false promise of marriage.
- Anurag Soni v. State of Chattisgarh
In this instance, a female pharmacy student granted the appellant permission to have physical contact with her only after he made a commitment to marry her, even though she was aware that the appellant’s marriage had already been arranged with another woman, Priyanka Soni. As a result, the Court decided that it was reasonable to draw the conclusion from the evidence that the accused never intended to wed the prosecutrix and that he had deceived her by saying he would marry her, which is why she agreed to have physical contact with him. Her consent will therefore be regarded as lacking consent under Section 90 because it was predicated on a false impression of the facts. The accused was therefore found guilty.
- Yedla Srinivisa Rao vs. State of A.P.
In this instance, the accused used to visit the prosecutrix sister’s home every day and beg her for a sexual favor. Even though he wouldn’t let her join him in such activities, he would constantly nag and try to convince her. She fought for around three months. He went to her sister’s house one more one day, shut the door, and forced her to have sex against her will and without her consent. He said he would marry her in response to her question about why he had ruined her life. Thus. They proceeded with their sexual relationship based on this assurance, and he also continued to assure her that he would marry her. After considering all of the above information, the court determined that the consent was given believing the accused would marry her. As a result, this permission will be interpreted as giving no consent, and the accused will be found guilty in accordance with Section 375 of the IPC and given the punishment specified in Section 376 of the IPC.
- Prashant Bharti v. Delhi
The victim’s age should be taken into account, according to the Supreme Court, in order to assess the consent issue, determine how mature she is, and determine the extent to which she is deemed to have given her consent based on her belief that the accused will fulfill his promise of marriage.
- Deepak Gulati vs. State of Haryana
According to the Supreme Court, a person can only be found guilty of rape under the penal rules if there is proof that the accused’s “intention was mala fide and that he has clandestine motives.” The Court went on to say that the defendant needed sufficient proof to demonstrate that he never intended to wed the victim. In such a case, the court cannot use Section 90 of the IPC to impose criminal liability on the accused and to completely forgive the victim’s act unless it is certain that the accused never planned to marry the victim in the first place.
- Uday vs. State of Karnataka
The accused will not be found guilty of rape within the meaning of Section 375 of the IPC because the Supreme Court noted that the victim’s consent to engage in sexual relations with someone she is deeply in love with, on the condition that they marry in the future, cannot be deemed to be a misconception of fact under Section 90 of the IPC.
FALSE PROMISE OF MARRIAGE TO BE DIFFERENTIATED FROM BREACH OF PROMISE OF MARRIAGE
The court has essentially established a difference between false promise of marriage and breach of promise of marriage. These are two different conditions. False promise of marriage is when there was no intention of marrying from the start while breach of promise of marriage is the condition when there is no deceit involved in taking consent and the accused had intention of marrying the woman but could not due to any situation that may have arose.
In the 2019 Maharashtra state case Pramod Suryabhan Pawar v. State, the plaintiff has known the defendant since 1998. She claimed that the accused had a sexual connection with her in 2008 with the intention of getting married. Due to her caste, he began to voice doubts about their marriage in 2014, but they decided to stay together. They used to stay together for days at a time and visit each other’s homes on different occasions, which helped to maintain their friendship. After he told her about his engagement to another woman in 2016, she filed a formal complaint against him. The Court ruled that a man cannot be found guilty of rape in any situation when he promises to marry a woman but then backs out of the marriage. He can only be found guilty if it can be demonstrated that the lady only consented to a sexual relationship because she was promised a marriage and that she did not intend to keep it.
CHALLENGES FACED
The challenges which are faced by the judiciary at current times is that of no law regarding false promise of marriage. However, this will be solved with the implementation of BNS. However, one challenge judiciary will face is in determining the genuineness of such type of cases. A woman may easily use this provision to get revenge on a man. Hence, it is the biggest challenge in front of judiciary to decide on the genuineness of the case so that a man is not punished without any cause.
SUGGESTIONS
The following suggestions should be taken into account:
- It is suggested that Courts should be more careful in determining the criminality of offence under Sec. 69 of BNS. A careful and such an interpretation is required for the law which is neither wide nor too narrow as to cause injustice to victim.
- In the cases, where it is proved unreasonably that a false case has been filed, then a penalty should be imposed on the complainant. This is to ensure that rate of false cases is decreased and a punishment is served upon them.
- Legislation should further take into account the contentions of men and legislate a law in favour of men also which may include the cases where women forces men to marry her to save himself from false case on false promise to marry.
CONCLUSION
In our conventional confined society, marriage is revered as a sacred institution, and females are conditioned to completely devote themselves to their husbands. Non-consensual sex within a marriage is not considered rape, even according to Indian regulations. Rape victims experience physical and psychological suffering as a result of sexual violence, which has a lasting impact on their lives. Rape is the crime that most distresses and humiliates the victim, as well as the victim’s family.
Every citizen’s life is protected by the state, thus before convicting someone of a crime, the facts of each case must be carefully determined. The evidence and the surrounding circumstances must also be considered before making any decisions or rendering a judgment. Because any mistake or incorrect decision could result in unfairness for the accused, instances involving a false vow to marry the accused’s purpose must be carefully investigated.
The insertion of provision of false promise of marriage under Sec. 69 of BNS has served to be a great law in the current times but it is to be used very cautiously as it may cause more harm than the benefit it will give to society and Indian Judiciary system.
Megha Jain
Dr. Ram Manohar Lohiya National Law University, Lucknow