Naviating Section 69 of the Bharatiya Nyaya Sanhita

27th July, 2024 - 7:03 am Categories: News & Updates 0 Comments

LEGAL DEFINITION AND ELEMENTS

Section 69 of the Bharatiya Nyaya Sanhita states as follows:

“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.

Explanation.—“deceitful means” shall include inducement for, or false promise of employment or promotion, or marrying by suppressing identity.”[i]

Deceitful means: Under this section would mean consensual sexual intercourse under the false pretense of employment or marriage.

False promises: This would imply the person in question who made the promise has no intention of fulfilling such promises.

Not amounting to rape: The element of consent is present, hence the act would not amount to rape, but since the element of deceit is involved, the act would be punishable for 10 years under the new code.

ANALYSIS AND CRITICISM

The intent of the law has been to safeguard women from being lured in through false promises, but this particular law has raised a lot of eyebrows as well. Not only does the law seem to have a misogynistic undertone to it, but there are several practical and procedural conundrums this law poses.

According to the Standing Committee Report on the Bharatiya Nyaya Sanhita, Section 69, the promise to marry has certain issues in the following spectrums: subjectivity and intent, privacy and autonomy, lack of clear parameters, cultural and social dynamics, enforcement challenges and gender dynamics.[ii] That is:

• Determination of intention is subjective and since intentions change with time, the proof of the promise where and when the deceitful intentions have been made can be arduous to prove.
• Matters of intimate relations between two people are personal and intrusive in nature, criminalisation of promises can be considered as unwarranted interference.
• The law lacks well-defined parameters on what constitutes a legally binding promise to marry, this can create further ambiguity and inconsistencies in enforcement and judicial interpretations.
• Further law enforcement will face issues in gathering substantial evidence of what may be oral or verbal communications between the parties in question.
• In the long run these laws may seem to disproportionately affect certain genders and may perpetrate damaging gender stereotypes.

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Some critics argue that several patriarchal norms are woven into the provision.[iii] There is also concern raised on how such kinds of law promote the Victorian concepts of safeguarding chastity, and therefore when the promise is broken, the act becomes offensive. It also raises the question: if the so-called false promises are fulfilled, would such acts become an offence under this section? This law also implicitly propagates and perpetuates the ideology of quid pro quo which getting something in return for another, which contradicts underlying values established under the Prevention of Sexual Harassment Act.

THE WAY FORWARD

Section 69 of the Bharatiya Nyaya Sanhita marks a shift in the criminal landscape of India. The section in question has come into existence in order to accommodate contemporary social norms and was brought into place to shield women from exploitation, but a well-intentioned law will not serve its legislative purpose if the ambiguity in definitions and applicability continues. What is necessary is clearer definitions and guidelines to enforcement agencies on what circumstances would fall under the section, establishing evidentiary standards and embracing a progressive legal framework that navigates the complexities of modern society but at the same time has a fair and consistent application that upholds equity and justice will serve the ultimate goal of criminal legislation.

Author: Sumana Satyamurthy, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

[i] Section 69, Bharatiya Nyaya Sanhita <https://www.mha.gov.in/sites/default/files/250883_english_01042024.pdf>

[ii] Rajya Sabha, Parliament of India, Two Hundred Forty-Seventh Report on The Bharatiya Nagrik Suraksha Sanhita, 2023,https://sansad.in/getFile/rsnew/Committee_site/Committee_File/ReportFile/15/188/247_2023_11_16.pdf?source=rajyasabha (10th November 2023).

[iii] Sandhya Ram, “Critiquing Section 69 of Bharatiya Nyaya Samhita: A Shamefully Misogynistic Approach?,” Live Law (accessed July 5, 2024), https://www.livelaw.in/articles/shamefully-misogynistic-section-69-bharatiya-nyaya-samhita-262052.