Love, lies, fraud and the law: The dangers of making false promises of marriage a crime

Mihika Poddar: From July 1, three new laws have come into force, replacing the old criminal laws. These include the Indian Justice (Second) Code, 2023 (BNS) which replaces the IPC. The number of sections in the new law has been reduced from 511 to 358 and 21 new crimes have been added. One of these new crimes is Section 69 of the BNS, which is being discussed a lot. In this section, ‘having physical relations with a woman by deception’ has been considered a crime. Apart from other ways of having sex by deception, Section 69 clearly states that if a man gains the trust of a woman by making a false promise of marriage and has physical relations with her, then this will also be a separate crime. For this, there can be a jail term of up to ten years and a fine.Earlier it was termed as rape
The law is notorious for condemning sexuality outside of marriage, especially for women. The criminalisation of cases of false promise of marriage (FPM) is a pertinent example. While there is a great debate to be had on criminalising sex by deception, such treatment of deception related to marriage raises particular problems. Notably, this is not a new offence—it was initially recognised as rape by the judiciary, arguing that consent given under a false belief is invalid and, therefore, tantamount to rape. It was criticised as stretching the definition of rape too far and restricting socially accepted sex outside of marriage. Recognising some of these issues, the courts started using the offence of fraud to classify such offences instead of rape. This is not a perfect solution, as fraud (S415) falls under ‘property offences’, which is reminiscent of the ‘appropriateness’ of women’s bodies.

What attention did the court pay to these matters?
Now that the BNS has recognised deceptive sex as a separate offence, its modus operandi is likely to be influenced by the court debates so far. When adjudicating these cases, courts have looked at two things – first, whether the woman’s consent was based on a false promise of marriage and second, whether the promise simply could not be fulfilled or was false from the outset. In principle, if a relationship breaks down or a promise of marriage cannot be fulfilled for any other reason, there cannot be a conviction as long as the person making the promise was truthful. However, evidentiary challenges to prove intent remain.

What did the expert say?
Moreover, it makes the false promise of marriage punishable as a sex crime in itself. On the one hand, making deception punishable is a recognition of women’s experiences, where premarital sex can have severe socio-cultural consequences. The realities of caste and class also increase the likelihood of such exploitation. Moreover, if the law relating to sex crimes aims to preserve sexual autonomy, Yale professor Jed Rubenfeld has argued that sex by deception (though especially in the context of rape) should be punishable. Deception is not just force but also inimical to consent.

On the other hand, false promise of marriage cases pose special challenges by linking women’s sexual freedom to marriage. One can sympathise with a woman who has been fraudulently forced into sex, but Professor Nivedita Menon argues in her book that labelling cases of false promise of marriage, in particular, as sex crimes, treats sex as legitimate only within the framework of marriage. This is evident in a system where marital rape is not considered a crime, courts consider couples who have sex before marriage to be married, and all sex outside marriage to be immoral. In particular, courts have excluded married women from being able to be tried in a false promise of marriage case, with divorce or remarriage not being considered realistic possibilities.

This creates an implicit assumption in the law that consent occurs only within marriage, thereby undermining feminist struggles to liberate women from marriage. As a result, the law reinforces social norms on honour, patriarchal control over young women’s sexuality and stigma towards premarital sex. In practice too, courts have been seen to use false promise of marriage cases as a tool to promote exogamous, inter-caste and inter-communal marriage structures. These concerns can be said to go against the values ​​of equality and sexual autonomy protected under Articles 14 and 21 of the Constitution.

some questions still remain
This debate highlights the complexities of navigating legal frameworks in a society where traditional norms intersect with evolving concepts of autonomy and gender equality. While Section 69 of the BNS fixes some of the problems with prior judicial criminalisation, by creating a separate legislative offence, it leaves some big questions open: should sexual consent be dependent on a promise to marry? And does this guarantee the recognition of the nexus between promises to marry and sexual consent as a legitimate basis for prosecution? It also remains to be seen how the courts will interpret and apply this new provision, and whether it will withstand potential constitutional challenges.