The Bharatiya Nyaya Sanhita, 2023, through Clause 69, proposes to criminalise sex which is based on the promise to marry when there was no intention of fulfilling the same. While the clause also covers “deceit”-based sex beyond the promise to marry, the focus here is on cases where there is a promise to marry.
Fundamental questions emerge from the proposed clause. Should criminal law have a role to play in sexual relationships that involve a false promise to marry? What does it mean for how we understand the sexual autonomy of women? It might seem like a women-centric proposal, but Clause 69 is steeped in misogynistic notions about women’s sexuality. It casts women as perpetual victims who can be “duped” into having sex, and effectively denies them sexual autonomy. The understanding is that criminal law has to come to the rescue of a woman since the only way for her to reclaim her position in society as a “good woman” is by filing criminal charges against the man unless he agrees to marry her.
Invisibilising consent
Criminalising sex based on a promise to marry is not a new proposition; the judiciary has for long interpreted such cases as rape under Section 375 of the Indian Penal Code (IPC). Since a woman’s consent to sex is based on a man delivering a future promise to marry her, the breaking of such promises culminates in a rape trial. Despite consent being exclusively defined under Section 375 of the IPC through the 2013 amendments, to date courts rely on the definition of consent under Section 90 of the IPC (consent given under fear or misconception) in these cases. Misconception is seen to exist when the promise is made only to “coax” a woman into sex without any intention of marrying her. The empty nature of the promise retrospectively vitiates the consent leading the man to be guilty of rape. But Section 90 also requires the man to know that consent is being given under misconception. Significantly, however, by proposing an offence separate from rape, Clause 69 throws out the element of knowledge on the part of men as well as women’s consent. Irrespective of whether the consent of a woman to sex is actually based on a promise to marry, if such a promise is established to exist and be false, consensual sex can be punished.
It is not difficult to foresee a possibility of misuse of Clause 69 by parents of women when they discover (through her pregnancy or otherwise) that their daughter had premarital sex. At the stage of filing the complaint, it may not matter whether any promise to marry was made at all. Of course, men can eventually be acquitted if women deny the existence of a promise to marry, but this does not preclude arrest and detention in prison for a significant period.
This is not an exaggerated concern, especially when most rape trials are initiated by parents/guardians of women, to restrict their sexual autonomy. Nearly 55% of the rape trials I observed in Lucknow in 2015 for a study fell in this category. Empirical research in other parts of India confirms the existence of these trends. Rape charges are filed by parents/guardians of women against men who elope with the women. Irrespective of their actual age, women are reported as minors. This sets statutory rape charges into motion against their male partners. As a result, many men spend time in prison only for courts to acquit them after finding the women to be adults. In such cases, rape charges arise not as an outcome of lack of consent but because of consent. Cases where there has been a promise to marry follow a similar logic: consensual sex is post-facto framed as a criminal offence if men fail to deliver on their promise of marriage.
Judicial Interpretations
Judicial interpretations of promise-to-marry cases as rape are also instructive. Courts have been willing to convict for rape only when the promise is false from the start and not necessarily when it is breached. Therefore, it is not considered rape when the promise has been broken for what the court sees as “legitimate” reasons. For instance, according to the Supreme Court, a man cannot be convicted for rape if the promise to marry has been broken because his parents were opposed to the wedlock (Deelip Singh v. State of Bihar, 2004). The implicit logic is that there is nothing wrong with a man not fulfilling his promise of marriage without parental consent. Similarly, if a woman has sex with a man from another caste based on a promise to marry, she is aware that marriage was never possible. This means that there was consent to sex irrespective of the promise of marriage (Uday v. State of Karnataka, 2003). The underlying basis here is that she should have known that inter-caste marriages are not socially acceptable. In essence, the law does not “protect” women who wish to defy caste and other social hierarchies to marry a man. Arushi Garg’s research on promise-to-marry cases in Delhi demonstrates that trial courts closely follow in the footsteps of the Supreme Court.
Promise-to-marry cases also carry the danger of diluting the gravity of sexual violence and strengthening rape myths. While most trials in Lucknow during my fieldwork were elopement cases, a considerable number were an outcome of a broken promise of marriage. It was evident that defence lawyers and police personnel routinely cited promise-to-marry cases as prime examples of women misusing the rape law.
Clause 69 has little to do with punishing sexual violence against women. Instead, it aims at regulating socially prohibited sex. If we are truly committed to the sexual autonomy of women, we must resist the victimhood that Clause 69 looks to assign women.
Neetika Vishwanath is Director (Sentencing) at Project 39A, National Law University, Delhi.
This article first appeared on The Hindu and can be accessed here.