On the Crime of ‘False Promise to Marry’

Section 69 of proposed Bharatiya Nyaya Sanhita (BNS), 2023 provides that if a man promises to marry a woman, without any intention of fulfilling the same, and still has ‘consensual’ sex with her, it will amount to a criminal offence

• The Bill, seeks to replace the Indian Penal Code (IPC), 1860, identifies ‘sexual intercourse on false promise of marriage’ as an offence
• Not expressly defined in the IPC, but courts have dealt with such cases through other provisions provided in the Act

Section 69, Chapter 5 of the Bill, titled “Offences against woman and children” describes ‘sexual intercourse by employing deceitful means etc.’

Section 69 creates two violations: one by deceitful means, and one by a ‘false promise to marry.’

Deceitful means will include the “false promise of employment or promotion, inducement or marrying after suppressing identity.”

The false promise to marry will be attracted only when a man makes a promise to marry a woman, with the intention of breaking it, for the purpose of getting her consent and sexually exploiting her.

• Both offences will extract a penalty of up to ten years of imprisonment.?

For the first time, intercourse with women under the false promise of marriage, employment, promotion and false identity will amount to a crime.

How has the IPC dealt with cases of ‘false promise to marry’?

• In 2016, Delhi Police data, a quarter of the total rape cases registered in Delhi pertained to sex under ‘false promise of marriage’.
• The National Crime Records Bureau in 2016 recorded 10,068 similar cases of rape by “known persons on a promise to marry the victim” (the number was 7,655 in 2015).
• Cases happen in one of two ways: when rape is committed, and the promise of marriage is used to silence the victim, or where the promise is made to ‘convince’ the person into entering a sexual relationship
• It is noted that?such?cases play?out?mostly?among?socially disadvantaged women,?given?that?legal remedy?cannot?be?easily?sought.
• Those coerced women into sexual relations will penalised under the new law
• Previously, these cases were dealt with through a joint reading of Sections 375 and 90 of the IPC
• Section 375, which defines rape, further defines consent as “an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or nonverbal communication, communicates a willingness to participate in the specific sexual act.” Explanation 2 of Section 375 also lists seven types of consent which would amount to rape if violated; these include if a man has sexual intercourse with a woman “without her consent,” or consent taken through fear of death, hurt or intoxication.
• In Sonu @ Subhash Kumar Vs. State of UP & Anr. (2021), the Supreme Court reiterated its earlier decision i.e. Pramod Suryabhan Pawar Vs. State of Maharashtra (2019) that under Section 375, a woman’s consent “must involve an active and reasoned deliberation towards the proposed act”. Section 90 says consent, given under “fear of injury” or “misconception of fact,” cannot be considered as consent. Cases of false promise to marry are dealt under ‘misconception’ to assess the validity of consent.
• If it is established and proved that from the inception the accused who gave?the?promise?to?the?prosecutrix?to marry,?did?not?have any intention to?marry?and?the?prosecutrix gave?the?consent for?sexual intercourse on such?an?assurance?by the?accused?that?he would?marry her,?such?a?consent can?be?said to?be?a?consent?obtained on?a misconception?of?fact?as?per Section?90?of?the?IPC and,?in?such?a case, such?a?consent?would not?excuse the?offender and?such?an offender?can be?said?to?have committed the rape as?defined?under Section?375 of?the IPC?and can?be?convicted?for?the offence?under?Section?376?of?the?IPC

What is the difference between ‘false promise’ and ‘breach of promise’?

• The law has distinguished between a ‘false promise’ and a ‘breach of promise’ on the basis of proving if the man intended to marry at the time of engaging in sex. Courts have previously recognised the ambiguity in determining consent and intention in such cases
• A Division Bench of Justice DY Chandrachud and Justice Indira Bannerjee of the apex court ruled in ‘Pramod Suryabhan Pawar Vs. State of Maharashtra’ (2019) a false promise is “given on the understanding by its maker that it will be broken,” but a breach of promise is “made in good faith but subsequently not fulfilled.” But, if a man can prove he intended to marry the woman before he entered into a sexual relationship, but later is unable to due to whatever reason, it is not legally punishable
• From the inception, the accused had intention to marry and that the promise he made was not false to his knowledge. Accused's father and others took him away from the village would indicate that the accused might have been prompted by a genuine intention to marry which did not materialize on account of the pressure exerted by his family elders. Appropriately, the case falls under a breach of promise to marry rather than a case of false promise to marry [Deelip Singh alias Dilip Kumar Vs. State of Bihar ((2005) 1 SCC 88)
• In case of Anurag Soni Vs. State of Chhattisgarh 2019 SCC OnLine SC 509, SC held that the accused had no intention to marry the prosecutrix right from the inception and he only had mala fide motives of using her to satisfy his lust. But for the promise, she would not have consented. This is a clear case of cheating and deception. Even in Section?114A?of?the Indian?Evidence Act, there is a presumption and the court shall presume that she gave the consent?for?the?physical?relationship with?the accused relying upon?the promise?by?the?accused that?he?will?marry her.?The accused was proven to have had sexual intercourse without her consent and, hence, was convicted of rape under clause second of Section 375; In Yedla Srinivas Rao Vs. State of A.P. (2006) 11 SCC 615
• In Shambhu Kharwar Vs. State of Uttar Pradesh & Anr (2022) SC held that consensual sex on a ‘genuine’ promise of marriage does not constitute rape
• In Deepak Gulati Vs. State of Haryana (2013) SC held that “the court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception”. The consent of the victim obtained by the accused by giving false promise of marrying her would amount to committing rape [State of Uttar Pradesh v. Naushad [(2013) 16 SCC 651].

How is intention to marry proved?

• Cases of ‘false promise of marriage’ look at two central issues, how consent is obtained (through deceitful means, or by misconception), and whether the man ever intended to marry the woman.
• In Naim Ahamed Vs. State (NCT of Delhi) (2023 SCC OnLine SC 89) SC held that the prosecutrix being a married woman and the mother of three children was matured and intelligent enough to understand the significance and the consequences of the moral or immoral quality of act she was consenting to. Even otherwise, if her entire conduct during the course of such relationship with the accused, is closely seen, it appears that she had betrayed her husband and three children by having relationship with the accused, for whom she had developed liking for him; in case of XXXX Vs. State of Madhya Pradesh & Anr. (2 Judges Bench) (06.03.2024)
• Moreover, Section 69 in the BNS codifies the offence instead of creating a new one.
• There are two critiques of Section 69. Such applications promote restrictive ideas about women, marriage and consent; they hinder women’s autonomy and revictimise them.
• The Supreme Court in the case of Mandar Deepak Pawar Vs. the State of Maharashtra & Anr. (27.07.2022) has held that the parties chose to have physical relationship without marriage for a considerable period of time. For some reason, the parties fell apart. It can happen both before or after marriage. Thereafter also three years passed when the complainant decided to register a FIR. The facts were held to be so glaring as that the Apex Court quashed the FIR and held that permitting further proceedings under the FIR would amount to harassment to the appellant through the criminal process itself. In case of Safdar Abbas Zaidi v. State of Telangana [2018 SCC OnLine Hid 179], the court observed that a party may choose to withdraw from a relationship due to physical, emotional or psychological incompatibility; Under such circumstances, they cannot be compelled to marry just because they have had a sexual relationship
• Courts have relied on a woman’s age, sexual history and marital status to question their ability to ‘trust’ the promise of marriage. In Rohit Tiwari Vs. State (2016) (DHC) “If a fully grownup lady consents to the act of sexual intercourse on a promise to marry and continues to indulge in such activity for long, it is an act of promiscuity on her part and not an act induced by misconception of fact,”. Burden of proof shifts on women to prove their consent was vitiated; in case of Prashant Bharti vs. State (NCT of Delhi) (2013) 9 SCC 293), and in case of Dr. Dhruvaram Murlidhar Sonar vs. State of Maharashtra and Others (2019) 18 SCC 191)]. In Sheikh Arif Vs. The State of Maharashtra & Anr (30.01.2024) SC noted that Section 375 of the IPC would not attract, if the victim of the alleged offence of rape is not under 18 years of age, maintaining a sexual relationship with her consent. The vagueness, and discretionary nature of rulings, often power the narrative that ‘love gone sour.’
• In Geeta Sharma Vs. State NCT of Delhi & Anr, (2017), Justice Pratibha Rani of the Delhi High Court, stated that, “on a number of occasions where both persons, out of their own will and choice, develop consensual physical relationship, and when the relationship breaks up due to some reason, the women use the law as a weapon for vengeance and personal vendetta.”
• Similarly, in the August 21 case, the Supreme Court Bench of Justices Sanjay Kishan Kaul and Sudhanshu Dhulia remarked on a false pretext of marriage case: “So far as it is consensual and between adults, there is no problem. But when you choose to live by your own standards, you should also be ready to face all the possible consequences.” Rape law is often the only recourse available to women to seek damages or maintenance.?
• Such approach of court of law promotes endogamy and shifts the conversation away from the real harm and abuse that women face.
• Impossibility of an intercaste marriage was also used as a ground to acquit the accused of rape. In Uday Vs. State of Karnataka (SC)(2003) a woman from an OBC caste accused a Brahmin man of raping and impregnating her. The man promised to marry her but later reneged on the promise. Court ruled against rape, saying there was no evidence to show a lack of intention; instead, since the parties belonged to ‘different castes,’ the victim had to be ‘clearly conscious’ of the ‘stiff opposition’ the relationship would face, and this wasn’t a case of misconception.
• This “promotes endogamy” and reified “the institution of caste while also penalising the prosecutrix for not adhering to caste norms.”?
• In Dileep Singh Vs. State of Bihar (supra), the court held that present case is breach of promise to marry, made accused prima facie accountable for damages under civil law.”
• Such cases would go beyond criminal law to offer reprieve to women through civil damages
• Without?clarity?on?‘justifiable intentions’,?commentators?add?the?Bill would empower?a?cycle?where?the consequences?of?crime?are?specified,?but the?consequences?of?harm,?which?women bear,?are?overlooked.