Can a man be jailed for breaking up with a woman he has been in consensual affair with? Can a relationship not culminating into marriage become the reason for putting a man into jail? Can a man be charged with a serious criminal offence with punishment up to 10 years if he goes back on a promise of marriage made by him?

If the newly introduced law Section 69 of Bharatiya Nyaya Sanhita is to go by, answer to all of these questions is YES.

The Bharatiya Nyaya Sanhita which has replaced Indian Penal Code has come with a new provision under the head of sexual offences against women - section 69

Section 69 of Bharatiya Nyaya Sanhita : Sexual intercourse by employing deceitful means, etc. 

Whoever, by deceitful means or making by promise to marry to a woman without any intention of fulfilling the same, and 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.

Explanation.––– “deceitful means” shall include the false promise of employment or promotion, inducement or marring after suppressing identity.

PROBLEM WITH THE LAW:

• The law is Unconstitutional and violative of Article 14 (The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India) and Article 15(Article 15 of the Constitution of India forbids discrimination on grounds only of religion, race, caste, gender, or place of birth) as it presumes that only a man can make promise of marriage or a job or a promotion to a woman to have sex by deceit and a woman can not do the same. That is, a consensual sexual relationship made on promise of marriage will be a crime only if a man reneges from it and not a woman. It also presumes that a woman can not be in position of power to induce a man into sex by false promise of job or promotion. The law is inherently gender biased, discriminative and prejudiced

• The law suggests that an adult woman does not have any agency of her own to make decisions in sexual matters related to her own body and dignity and can give in to demand or inducement of sex merely on promise of a marriage or job or promotion. Not only is this extremely regressive but it also completely discards the concept of will and consent which are essential elements to be discussed in matters pertaining to sexual offences.
• The law does not define how long can sexual relationship between a man and a woman last before she charges the man under this section. In absence of any such description - long term affairs, live-in relationships any premarital relationship between a man and woman can be turned into false promise of marriage case
• As the law is cognizable and non-bailable, a man will be immediately arrested after being charged merely on the basis of statement of the woman as in sexual offences, statement of a woman has been seen as sufficient evidence to prosecute the man
• Despite the law being extremely prone to misuse, no misuse clause has been added to this provision.
• Punishment has been set to 10 years and fine and hence whether there was any promise or not, whether there is any evidence or not of the said promise, the man will be immediately arrested as is seen happening now in rape on false promise of marriage cases, even if the man has sufficient proofs to prove no marriage promise was ever made

RAMPANT MISUSE OF RAPE ON FALE PROMISE OF MARRIAGE CLAUSE IGNORED WHILE BRINGING A NEW LAW

In December 2022, Orissa High Court called for a serious relook on the rationality of automatic extension of section 90 of the Indian Penal Code to determine validity of consent for sex on false promise of marriage. Dr. Justice Sanjeeb Kumar Panigrahi while granting bail to a man accused on similar charges in this case said “The intention of the law makers is clear on the issue. The rape laws should not be used to regulate intimate relationships, especially in cases where women have agency and are entering a relationship by choice.” It further added “The law holding that false promise to marriage amounts to rape appears to be erroneous. Since the framers of law have specifically provided the circumstances when 'consent' amounts to 'no consent’ in terms of Section 375 of I.P.C., hence consent for the sexual act on the pretext of marriage is not one of the circumstances mentioned under Section 375 of I.P.C.” 

In December 2021, a sessions court in Ahmedabad, Gujarat acquitted a man from rape on false promise of marriage charges, filed by a woman he was in live-in relationship with. The court observed “Having a live-in relationship with the accused despite the knowledge that he was a married man shows that the victim was fully aware of the moral quality of the act and was willing and consenting partner. This court is of the opinion that sexual intercourse between the couple which was with the consent of the victim cannot be said to be rape.” The woman who filed this case had married thrice before and never divorced any of her husband, still she claimed that a man gave her false promise of marriage.

There have been cases in India where married women have charged a man she had affair with of raping her on false promise of marriage 

There have been cases in India where a woman charged man of rape on false promise of Marriage after a 5 or 10 or 15 year long affair

There have been cases in India where an adult woman has filed case against a minor boy claiming that sex happened because of false promise of marriage

There have been cases in India where boys under the age of 21 have been slapped with cases of rape on false promise of marriage by a female much older to him even when they can not legally marry

When the provision of rape on false promise of marriage was already being misused in case of broken affairs, should the government not have done due deliberation before bringing a new law?

WHY THIS LAW SHOULD BE REPEALED

Misuse of IPC 498A has been documented in endless judgments across high court and even supreme court of India. Misuse of this law has destroyed countless families in India and subjected lacs of men and women to arrest. The law has been known to be misused in any situation of a marriage breakdown whether the husband or his family are at any fault or not.

Section 69 BNS is also prone to be misused in any situation of a consensual affair going sour making any man susceptible to such a charge for the only mistake of breaking up.

The law has come without any checks or balances whatsoever to save innocent persons from being subjected to a long criminal trial without any fault. As there is no duration specified in the law of continuation of sexual relationship based on a certain promise, medical evidence will hold no relevance in such matters and the law will be a situation of he said, she said where her statement will weigh above his evidences.

If the lawmakers intend to bring this new provision on the statute for whatever reason, there should be thorough consultation process with citizens of this country before passing such a law. In its current form, section 69 should be repealed.

A bad law can not do good.

We, the citizens of this country are pleading to the government to review this provision of law so that innocent lives are not subjected to LEGAL TERRORISM