Author(s): Dr Shahanshah Gulpham and Pravesh Shekhar
Paper Details: Volume 4, Issue 5
Citation: IJLSSS 4(5) 39
Page No: 515 – 525
ABSTRACT
For a person to be convicted of an offence under section 69, the act of sexual intercourse must have been consented to on the grounds that it was solely or partly induced by a fraudulent misrepresentation. The section as worded seems to suggest that only a woman can agitate consent taken by fraud. In India, a marriage can be done legally between a man and a woman as long as they satisfy certain requirements. ” By Making a Promise to Marry a Woman Without Any Intention of Fulfilling the Same” would appear to be a rational inference that the legislator worths, redress can ground only where it operates the woman by man. These restricted terms have two main problems: it doesn’t include male victims and keep alive the image of male as criminal. By a previous conclusion, this clause is inherently biased towards females. It renders the statute unable to punish the female counterpart and offers no redress for her, should she sustain an equal mental or physical injury from his hand. This section’s sexist and patriarchal roots are the second, greater effect that makes us look bad as a result of our nation’s socio-legal progress. The section argues that marriage proposal and leadership are things restricted to men. The clause also appears inadvertently to have the effect of providing a tool for abuse or exploitation by third parties (third parties within, rather than outside, particular families) which can lead to criminalization and social stigmatization on moral grounds of consensual premarital sexual relationships. What it considers to be sexually immoral may have particularly deleterious repercussions in more traditional, norm bound sociocultural contexts where ideals of chastity, sexual propriety and honour retain a tight grip. Furthermore, that by instilling a climate of fear such as the fear of retaliation or false accusations along with the broad scope provided is not to jeopardise men’s freedom in consensual sexual contacts and strike at the very bubble when balanced encouragement may lean toward true security from the hands of an oppressor rather than inclining towards over criminalization. Sexual Intercourse, False Charge Section 69 talks about sexual intercourse against person’s will unless consent is obtained and its exemptions like while committing forgery or for making a childless woman pregnant otherwise than by the order of nature.
Keywords: Consent and Fraudulent Misrepresentation, Gender Bias in Section 69 BNS, Patriarchal Legal Framework, Criminalization of Premarital Sexual Relations
INTRODUCTION
The Bharatiya Nyaya Sanhita, 2023 (BNS) represents a watershed moment in the evolution of Indian criminal law with respect to sexual offences and the complex issue of consent. Where the definition of rape under Section 375 is not satisfied, there may still be sexual contact without legally valid consent if such consent has been obtained through deception. This includes the failure to disclose material facts likely to affect consent, such as having a serious infectious disease or being impotent. Under the BNS, such consent is vitiated in terms of Section 28. However, Section 69 applies only where sexual intercourse involving penetration takes place, as it is directly linked to the concept of “sexual intercourse”.
The idea behind this discovery was to plug more and more holes of IPC where cases of “false promise to marry” were hanging at the cross road between a civil wrong and criminal offence. But the application of Section 69 has profound practical and policy consequences. Its other face, however, is a genuinely praiseworthy effort to stamp out and criminalize certain forms of personal exploitation that were previously dismissed as plain old “breach of promise”. On the one hand it heralds a powerful extension of State power into personal relationships and let us just say that it asks fundamental questions both about how far such criminalisation should in justice be extended as to whether protective procedural safeguards are any longer viable. The paper critically analyses Section 69 in view of policy, legislative interpretation and patterns of “false promise to marry” cases in the criminal justice system currently (with reference to NCRB- National Crime Records Bureau field level reporting and attrition patterns). The paper considers how this equity-based principle in section 69 serve to restate dynamics of reporting, investigation and prosecution of inter-personal violence systems between States in terms that may address putative (in relation to case law) imbalance derived from secondary data analysis, court room observation and socio-legal commentary. The research reveals two simultaneous paths: towards the risk of over-criminalisation in deeply prejudiced environments with brittle consent standards, and patriarchal expectations on marriage; and towards State recognition (by official record keeping) of sexual coercion as it does not neatly fit within existing rape definitions, informing public understanding and redress. The examination of whether Section 69 increases access to justice for women or inadvertently perpetuates carceral responses in cases that are more appropriately addressed through civil or restorative approaches is undertaken by critically analysing the cognisable and non-bailable nature of the provision, its trial under the Court of Session, and potential misuse. It then concludes by recommending some empirically-informed policy responses to ensure that there is proportionate, survivor-centred, and equitable State action.
Intent and History of Section 69 BNS
HISTORICAL CONTEXT AND LEGISLATIVE RATIONALE
The vagueness of customary law in case of ‘false promise of sex’ and particularly that concerning ‘false promise of marriage’, becomes the springboard for the evolving Section 69 BNS. Prior to the BNS, the IPC had no provisions dealing with such situations, which resulted in judicial confusion and uneven enforcement of Sections 417 (cheating) and 376 (rape). While several High Courts and the Supreme Court had been oscillating between treating these as rape where consent was vitiated for being induced by false promise of marriage, or a civil wrong since fraud vitiates only free consent in India (which excluded sexual acts from such stipulations at that point) which left the complainants with no criminal remedy. This lack of jurisprudential clarity resulted in the formulation of section 69 BNS. The Statement of Objects and Reasons that accompanies the BNS reaffirms the legislature’s objective to ‘fill up the gap in law where sexual intercourse is obtained by false promise, not amounting to rape though yet a matter of grave concern as violation of autonomy and trust’ (Statement of Objects & Reasons accompanying the Bill). Except for the fact that it does not constitute rape by virtue of Section 63 of BNS, the provision criminalises sexual intercourse when enticed… or while keeping in view a promise to marry, job or promotion; induces such person believing that accused is another person.
COMPARATIVE LEGAL PERSPECTIVE
The following comparative jurisdictions that have recognised sexual fraud or sexual deception as distinct crimes albeit with varying degrees of thresholds and definitional certainty form the conceptual model for the treatment of Section 69 BNS. For example, many US States have enacted laws focused on “sexual assault by fraud” and the UK’s Sexual Offences Act, 2003 outlaws’ sexual activity obtained through pretending to be person you are not or lying about nature or purpose of the act. But the Indian definition stands out in terms of its reach and the overt mention of marriage and work engagements in situations which are closely tied to India’s patriarchal mores and social fabric.
FALSE PROMISE TO MARRY BEHAVIOUR OF CASE LAWS IN INDIA: IPC TO BNS CONFLICTING JUDICIAL APPROACHES
In the past, we have had feather-footed judicial pronouncements in respect of cases involving a woman being intoxicated into having sex on consideration or promise to marry. Whether the promise was bona fide or false, the consent free and untainted by suggestions of falsehood, so that otherwise it is a case in which our penal code responds to wrongs punished at common law. In State of Haryana v. Deepak Gulati'(2013), the Supreme Court held that all breach of marriage promise are not rape and prosecutrix’s consent should have been obtained on misconceptions and there had to be a fraudulent or deceitful misrepresentation made by the accused to the girl. A contextual appreciation of “permission” was emphasized in subsequent pronouncements including Pramod Suryabhan Pawar v. State of Maharashtra (2019) adding a caution against automatic lodgement of the allegation of rape pursuant to rift in taped relationship. But the way High Courts have understood this concept has varied; some extended criminal liability to cases where the promise of marriage was later withdrawn, whereas others restricted it only to those situations where there had been an outright deception or malice.
IMPLICATIONS FOR SECTION 69 BNS
In creating a separate offence for sex procured by fraud and ensuring that not all of these examples are labelled rape (and thus potentially providing parity definitions), Section 69 BNS seeks to codify and reconcile this area of law which is under the spotlight. Matter-of-factly, the section also criminalizes conduct that falls short of the heavy burden of proof that is required in rape cases. Another concern raised by this piece of legislation intended to give police and prosecutors a clearer model from which to work, is the ambiguity as to what constitutes criminalization at all, and how subjective “deceitful means” could be interpreted.
SECTION 69 EXISTING LITERATURE
Section 8 of BNS has reference to the literature for certain useful observations on standard forms Section 69. First, it bellies free consent that Allows Deception To Be Lawful. It gets us to wondering where courts would draw the line between honest and shady transactions. Although academics contend that consent is involuntary when induced through deceitful promises, the section provides no ready formula to evaluate such instances. The scholars observe the indivisibility of punishment. It is up to the judge to decide on how hard or easy the sentence for Section 69 should be because there is no minimum jail term for Section 69. Such ambiguity can result in inconsistent results and frustrate the rule of law’s role in dispensing justice. Taken together, these gaps problematise the definition of consent and state power in articulating this crime. There is some existing that highlights a number of gaps and tensions in Section 69, BNS. The section also fails to avoid any confusions and is liable for duplicacy in law as a consent under fraudulent duress will among to consent obtained by fraud under Section 63. It is uncertain when Section 69 should be used or why it would be treated differently from existing offences if there’s no non-obstante clause. Such an overlay also violates constitutional revenge-fear grounds under cover of 14 as when a legislation is couched in vague and ambulatory terms, this breeds inequality or arbitrariness by administration. More question than about the clarity of the offense. “The distinction between fraud and lack of consent is not clearly defined, so there could be inconsistent legal application from case to case. It is also an alert that, in the absence of procedural checks and balances, the provision could too easily be manipulated, leading to spurious or retaliatory allegations and placing further strain on an already overburdened criminal justice system. The issue of separating true from false promise is particularly highlighted in cases of consent obtained by deception. And actually, even if you think (or if someone says) that he/she does want to be married but finally sees she/he doesn’t want to whether for practical reasons or personal development – it’s still not a lie to have sex… But if it can be proven that the sexual relationship was bas¬ed on an intentional fraud then she would drink from a cup of that there never really existed on the part of the accused a serious intention to marry. Two important Supreme Court rulings Pramod Suryabhan Pawar vs State of Maharashtra (2019) and Uday vs State of Karnataka (2003) underscore this difference. It was held that it should be shown to have been an untrue promise from the very beginning for it to amount to rape. These cases emphasise the relevance of intention to determine whether consent was obtained freely or under some kind of deception. The Supreme Court pointed out an important point in Naim Ahamed v. State (NCT of Delhi) -a false promise to marry is not a false undertaking when the ‘assurance was honest, but later falls through’. The Court warned that merely breaking a promise does not constitute rape indictment and nor deception. This is a direct problem for the BNS Section 69: when must permission gained through this kind of intentional crime be separated from what seems to be a genuinely failing relationship? It may not be practicable for section 69 to ensure uniformity or justice on occasion without a standard.
NCRB PATTERNS: REPORTING, ATTRITION AND PROSECUTORIAL OUTCOMES, PATTERNS OF REPORTING
The surge in such rape cases that is, those following deceitful promise to marry has mostly been witnessed from urban and peri-urban areas. On the basis of a collation of NCRB data (Sexual offences under Indian Penal Code), the number of reported rapes from 2006 up to 2019 has seen a steady growth. False promises to marry were the category where rape was reported in almost 11 per-cent of all cases registered under Section 376 IPC from 2017 until now. Socio-legal investigations reflect a high degree of underreporting in rural areas where the survivors are dissuaded to approach Criminal Justice system for the reasons of social shame and fear for exclusion.
ATTRITION AND CONVICTION RATES
Most of these cases are either acquitted or settled out of court, and attrition despite more reporting is still high. Discrepancies in conviction rates are also evident: NCRB statistics show that the rate for “rape on the pretext of marriage” is far lower, at less than 25-30 percent. The preponderance of unfavourable witnesses, the difficulty of proving in the first instance that such promise was false, and the lack of corroboration is all contributing to this problem.
FIELD-LEVEL IMPLICATIONS OF SECTION 69
Through the introduction of an alternative offence category, Section 69 BNS is expected to encourage a changed reporting behaviour and could reduce the incentive to design all such cases as rape allegations. But in cases of strained relationships or estrangement within the family, the wide wording of this law; its cognizable and non-bailable nature, would not only encourage genuine complaints but also lead to malicious or false complaints. The defendant, victims and the credibility of the criminal justice system is drastically influenced by this wide discretion provided to police and prosecutors.
Section 69 BNS and State Expansions of Power, The architecture of state power: consent, capacity and criminalisation
The enactment of Section 69 BNS raises crucial questions about the legitimate scope of criminal law in ruling on sexual relations and consent and represents a substantial overreaching by the State into private realm. While the provision is designed to protect individuals – in this case, mainly women – from being misled into an exploitative relationship with promises that are not true, it also places the government as arbiter of private hopes and individual motivations. Within a highly patriarchal social setting that connects marriage, sexuality and honour, this extension is significant since it frequently means that the criminal system becomes utilised to sanction morality, whereas attempts are made at reconciliation.
OVER-CRIMINALIZATION AND CARCERAL FEMINISM
Critics of Section 63 BNS invoke a risk of over-criminalization that could result in all manner of private quarrels being spattered into the large ark-vat/prod-law Crime project and unduly over-punishing young males, couples not just cross-caste but cross-religion and folks opposing values. Its non-bailable and cognizable nature is likely to result in pretrial detention, and coercive investigation, possibly leading to greater police response in sexual assault cases. This relation brings to mind the spectra of “carceral feminism,” wherein the body of criminal law becomes seen as the key (if only) tool for achieving gender Justice and often trumps other, social or civil or rehabilitative responses.
INVESTIGATIVE AND PROSECUTORIAL DISCRETION
There is considerable discretion given to police officers under Section 69 BNS to determine if an allegation is bona fide and with dishonest intention. In the absence of clear criteria for investigations and screening, there is a possibility that such discretionary powers may be misused or applied in a manner which is casteist, socialist or communal. Analogously, the prosecution’s obligation shifts from establishing non-consent (as in cases of rape) to proving that the promise or representation was actually a lie. It’s a messy sort of business that involves very subjective judgments about intent, and hard-to-quantify evidential matters.
THE PROMISE OF RECOGNITION
Section 69 BNS supporters of the provision argue that it is a long overdue recognition of sexual obsession beyond for the purview of rape. The law recognises the world of exploitation and, more particularly, the vulnerability to exploitation especially from women who are lured into sex with false promises when it bars gaining sexual relations by deception. This is a potent admission in a culture that looks up to marriage as the be-all and end-all, and usually leaves victims of such assaults with very few options giving premarital sex so much shame.
THE PERIL OF REINFORCING PATRIARCHY
Criminalising “false promise to marry” could reinforce patriarchal norms and contribute to the perception of women as hapless victims whose sexual freedom falls at the feet of prospective husbands, socio-legal scholars believe. Such legislation is in danger of being used to police relationships that violate the boundaries imposed by family or community, punish women’s sexual autonomy and enforce adherence to traditional sexual mores as well as to discourage exploitation.
CIVIL, RESTORATIVE, AND SOCIAL-SUPPORT ALTERNATIVES
Any rational policy assessment of Section 69 BNS should take doomed, also discussed below curtailed are the carceral alternatives. Some commentators advocate for a more nuanced response that involves civil consequences for broken promises, restorative processes to address harm and social supports for victims whether or not their encounters amount to criminal conduct. Critics argue that the present wording of Section 69 jeopardises what they believe could be achievements if there is a return to sanctions.
IMPLEMENTATION REALITIES AND PROCEDURAL CHALLENGES, COGNIZABLE AND NON-BAILABLE STATUS
The seriousness with which the legislature viewed and deals with the offence is evidenced from subsequent provisions of Section 69 BNS, in that it is cognizable, non-bailable and triable by a Court of Session. or, was this because pre-treatment evaluation and screening are not good enough or due to delayed assessment, through which prompt psychiatric consultation of jail cases could be increased? When police are undereducated, overburdened, or susceptible to outside pressure, abuse is more likely.
INVESTIGATIVE STANDARDS AND EVIDENTIARY BURDENS
It is also hard to prove that a promise is unkept or that a representation was false. There is seldom any evidence other than the testimony of the parties, with little corroboration. Close relationships make it particularly challenging to assess intent and expectations, without clearly established investigation procedures “possible wrongful conviction or failure to convict someone who abuses a child”. If it is not difficult enough for the complainants and accused both, they have no time-bound inquiry/trial proceedings.
REGIONAL AND SOCIAL VARIATIONS
Social and regional differences in reporting, investigation, and prosecution are likely to influence how Section 69 BNS operates at the wage-labour or field level. Police and judicial competence, the strength of local patriarchies, prevailing social norms these are among many factors that shape how cases play out. Given that survivors have to negotiate public backlash, prolonged litigation and uncertain closure, the attrition rate is also higher in jurisdictions with more reporting (socio-legal research and NCRB statistics show this).
POLICY SAFEGUARDS AND RECOMMENDATIONS
In order to avoid the risk of over-criminalisation and/or vagueness of application there must be more precise indications from the legislator as to the elements constituting an offence under Section 69 BNS. This involves both defining deceitful means and identifying the level of evidence required to prove dishonesty or deception as well as delineating when criminal responsibility attaches. If mandatory filtering at the stage of FIR-being lodged itself and even during preliminary inquiry entailing minimum filtration for baseless allegations, false or frivolous complaints may not even be entertained. Police and prosecutors need training in how to spot real cases of exploitation while preventing abuse. If magistrates are involved in the preliminary appraisal and timelines are established for investigation and filing of the charge, then procedural delays can be avoided along with unnecessary incarceration. A victim-centered approach means providing complainants with social assistance, legal counsel, counselling and housing whether or not the case ends in conviction. Policy makers should emphasis creation of support centers, fast track courts and witness protection programs to minimize the secondary trauma of the victims in criminal trials. Restorative justice alternatives or civil remedies should be facilitated, where appropriate, as an alternative to or in addition to criminal prosecution. Collections of data relating to FIRs, arrests, prosecutions, convictions and acquittals should also be maintained on a regular basis to determine the impact of Section 69 BNS and ascertain possible instances of misuse or under use. Independent audits, and studies based on NCRB data and field experiences can influence policy to make it evidence-based. Finally, the criminal law approach under section 69 BNS should be supplemented with non-carceral reforms that address the root causes of vulnerability and exploitation. One way to decrease reliance on punitive sanctions as a remedial measure is to change the culture around consent, sexuality and marriage through educational programs, public education campaigns and family law reform.
CONCLUSION
A major legal intervention on questions of personal exploitation, sexual autonomy and the boundaries of state authority is initiated by Section 69 of the Bharatiya Nyaya Sanhita, 2023. The clause is designed to eliminate the longstanding legal gaps and provide reparations for survivors who have long since slipped through the holes of civil and criminal recourse by making it a crime to purchase sex based on promises and representations that are false. But no matter how complex the subject of over-criminalization and investigatory discretion will be, Section 69 represents at its widest application and procedural rigour a chance to re-create patriarchal carceral norms. This paper’s findings suggest a call for policies that are better calibrated to the protective goals of the law, and more proportionate and fair state intervention. To mitigate against the risk of Section 69 being exploited as a tool for arbitrary or punitive surveillance into sexuality and consensual sexual relationships, evidence-based policy safeguards such as more precise legislative content, rigorous scrutiny mechanisms, survivor-centred oversight and monitoring systems are essential. In short, no search for justice in sex-trafficking cases can be complete if it doesn’t’t involve a comprehensive response that transcends retributive principles and recognizes both restorative and civic considerations as well as the humanity of everyone involved.
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