Shalin Saurav, Lloyd School of Law
To the point
The realm of law and love has always been complex, often overlapping in ways that demand careful legal consideration. One such overlap finds voice in Section 69 of the Bhartiya Nyaya Sanhita, 2023 (BNS) – a provision that addresses deceitful or false promise made to induce a person into sexual relations. This section, while meant to uphold dignity and consent, walks a razor-thin line between criminalizing exploitation and respecting consensual romantic relationships. As India redefines its criminal laws with Bhartiya Nyaya Sanhita replacing the Indian Penal Code (IPC), understanding Section 69 is imperative not just for legal professionals but for society at large.
Love and Law are parallel forces – one rooted in emotion, the other in reason. Love is fluid, forgiving, tranquil, and personal; law is rigid, impartial, argument, and public. Where love thrives on trust, law demands proof. Their clash is inevitable when private promises enter the realm of public accountability. As Shakespeare wrote in Measure for Measure, “The tempter or the tempted, who sins most? – a line that captures the murky moral terrain where affection turns into allegation. The law, in trying to measure love’s betrayal, must tread carefully, for justice in matters of the heart is rarely black and white.
Abstract
The article offers a comprehensive breakdown of Section 69 BNS, analyzing its scope, implications, and impact on individuals and the legal system. It further delves into the benefits and drawbacks of this provision, attempting to answer the question: does Section 69 empower or overreach? Section 69, BNS, 2023: Whoever, by deceitful means or by making a false promise of marriage without any intention of fulfilling it, has sexual intercourse with a woman, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.
This section is aimed at penalizing men who induce a woman to engage in sexual intercourse through false promises or deceit, particularly promises of marriage which they never intended to fulfill. Section 69 BNS counterpart of Section 375 (fourth clause) read with Section 90 of the IPC, which criminalized sexual intercourse without valid consent. Over time, Indian courts have interpreted consent to be “vitiated” when given under a misconception of fact, including false promises of marriage. However, such interpretations often relied on judicial discretion, leading to inconsistent verdicts. Section 69 BNS attempts to codify this interpretation by explicitly criminalizing sexual acts induced by deceit. This codification brings uniformity, but also new challenges.
Use of Legal Jargon
To make this law more accessible, it’s crucial to understand the key legal terms and concepts involved:
Deceitful Means,
This implies any act of fraud, misrepresentation, or trickery used manipulate another person. It could include fake commitments, lies about marital status, job offers, or promises one never intended to keep.
Consent,
In legal terms, consent refers to an unequivocal, voluntary agreement, given by a person capable of making such decisions. In the context of sexual offences, Section 90 of the Indian Penal Code (still relevant by analogy) states that consent is not valid if given under fear or misconception.
False Promise of Marriage,
A false promise is one that the maker never intends to fulfill. If a person promises marriage with no intention of keeping that promise and uses it to coerce someone into sex, it can amount to an offence.
Intention (Mens Rea),
Criminal liability depends on the mental state (mens rea) of the accused. To invoke Section 69, it must be shown that the accused intended to deceive at the very beginning – not that they merely changed their mind later.
Either Description,
This phrase, used in sentencing, means the court can impose either rigorous or simple imprisonment, depending on the circumstances of the case.
Misconception of Fact,
As defined under Section 90 IPC, this occurs when a person consents to something based on a false belief or incorrect information rendering the consent invalid in law.
Power Imbalance,
Although not a technical term, this refers to a situation where one party holds significantly more influence like an employer over an employee which can impair the other’s ability to make free choices.
The Proof
Analyzing comparative perspectives of International Jurisdictions, In the UK, deception as to the nature or purpose of the act can vitiate consent under the Sexual Offences Act, 2003. However, courts are more cautious in distinguishing between deception as to intention (which generally does not invalidate consent) and deception as to identity (which can)
In US, consent obtained by fraud is considered invalid in only few states. Most states do not consider false promises of marriage a criminal offence unless statutory rape or coercion is involved.
This shows that India’s approach under Section 69 BNS is unique, expansive, and potentially more protective but also more controversial.
In Pramod Suryabhan Pawar v. State of Maharashtra (2019), the Supreme Court held that:
“A false promise is not the same as a mere breach of promise. There must be evidence to show that the promise was false at the time it was made, and the maker had no intention to abide by it”
This nuanced differentiation helps distinguish fraud from failed affection. Section 69 should ideally be interpreted using this judicial principle to prevent abuse and uphold justice.
The Fine Balance: Benefits of Section 69 BNS
Recognition of Non-Physical Coercion,
One of the major achievements of this provision is its recognition that coercion does not always have to be physical. Deceit can be a form of coercion when it directly influences the decision-making capacity of a person. Consent given under emotional or intellectual fraud is not valid. Section 69 legally validates this perspective.
Legal protection for women from Emotional Exploration,
Section 69 is primarily gender-specific focusing on the woman as the victim. Given the prevalence of exploitative relationships where women are manipulated under promises of marriage or career advancement, this section provides a much-needed legal remedy. It attempts
to bring a balance of power in intimate or vulnerable interactions.
Addresses New Forms of Digital Fraud,
The inclusion of impersonation and fraudulent identities is crucial in today’s digital age, where catfishing and identity manipulation on dating apps and social media have become alarmingly common. Section 69 can be invoked where deceit involves digital misrepresentation of their identity.
Codification of Judicial Trends,
By formalizing what was earlier ambiguous and largely left to judicial interpretation, Section 69 promotes legal certainty. It consolidates principles from multiple case laws and offers a concrete statutory foundation.
Drawbacks and Concerns with Section 69 BNS
Gender Bias,
Section 69 is currently gender-specific, protecting only women as victims. This excludes men, non-binary, and transgender individuals from seeking similar legal protection. It could be seen as a step backward from gender neutrality in laws, especially considering the contemporary understanding of equal rights across genders.
Weaponization of the Law,
As with many other laws relating to sexual offences, therea potential for misuse of Section 69. In cases of consensual relationships gone sour, the provision may be weaponized to settle personal scores, leading to unjust incarceration or harassment of the accused.
Impact on Personal Liberties and Privacy
There is an inherent risk that laws regulating intimate behavior may intrude into private matters that should otherwise remain purview of criminal law. The law runs the risk of criminalizing private, consensual relationships, which may be morally questionable but not legally criminal.
Proof and Evidentiary Challenges,
Proving “false promise” or “deceit” beyond a reasonable doubt is extremely complex. Courts must delve into the intention at the time of making the promise, which can rarely be established through direct evidence. This raises concerns about subjective judicial reasoning and delays in justice delivery.
Case Law and Real -Time Examples
Uday v. State of Karnataka (2003),
Facts: The accused had sexual relations with prosecutrix based on a promise of marriage. Later, he refused to marry her.
Held: The supreme court ruled that a promise of marriage that is not fulfilled does not necessarily mean that the consent was obtained by deception, unless it is shown that promise was false at the time it was made.
Relevance: This case is foundational in distinguishing genuine failed relationships from intentional deceit, now addressed under Section 69. It shows that must evaluate the intention at the time of the promise.
Deepak Gulati v. State of Haryana (2013),
Facts: A man eloped with a minor girl who believed they would marry. The man was charged with rape.
Held: The Supreme Court acquitted him, holding that both parties were in love and consensual elopement should not be criminalized unless clear malafide intent is proven. Section 69 must be used with caution to avoid criminalizing emotionally complex situations.
Catfishing Case – Mumbai, 2022,
Facts: A man created a fake social media profile impersonating a doctor and entered into a romantic relationship with a woman. They engaged in sexual relations under false identity. When the truth came out, she filed a complaint.
Held: The accused was charged under IPC Sections 417 (cheating), 419 (impersonation), and 376. The trial was ongoing, but the case sparked national debate about digital deception and consent.
Relevance: Section 69 now specifically includes impersonation under its ambit, addressing emerging issues of online identity fraud.
Conclusion
Section 69 of the Bhartiya Nyaya Sanhita is a classic example of the law’s attempt to navigate the fragile, grey areas between emotional entanglement and legal exploitation. It is a progressive provision that acknowledges the complexity of modern relationships and the need to protect individuals from emotional fraud. At the same time, its wide ambit and vague language open the door for potential misuse, overreach, and legal ambiguity.
Ultimately, the law must strike a balance – it should offer remedy to the wronged without becoming a weapon for vengeance. As society progresses, laws like Section 69 will need continual judicial scrutiny, legislative refinement, and societal discourse to remain fair, relevant and just.
Frequently Asked Questions (FAQs)
Is Section 69 BNS the same as rape under Section 63 (formerly Section 375 IPC)?
No. While Section 63 covers rape involving lack of consent or coercion, Section 69 applies when consent is obtained through deceitful means. It fills the gap where consent is vitiated by fraud, not force.
Can a man be punished under Section 69 BNS for failing to marry a woman after a consensual relationship?
Not always. Failure to marry, by itself, is not a crime. It must be proven that the promise of marriage was false when made, and was used to induce sexual relations. Courts look at intention at the time of the promise.
Does Section 69 apply to live-in relationships?
It can, only if deceit or false promise is involved. Live-in relationships based on mutual consent and transparency are not criminalized. The provision is meant for situations where consent was manipulated.
Can men file a complaint under Section 69 BNS?
Technically, yes, as the law is gender-neutral in its text. However, in practice, most cases involve women as complainants due to the historical context of gender-based exploitation. Courts may entertain cases where men are deceived in similar circumstances.
