COMMENTARY
judgments, the Supreme Court in Uday v
Bharatiya Nyaya Sanhita and
the False Promise to Marry
S M Aamir Ali, Anuska Vashist, Anuttama Ghose
Section 69 of the Bharatiya Nyaya
Sanhita, 2023 focuses on the
criminalisation of sexual
intercourse by a false promise to
marry, which may be through
deceitful means with no genuine
intention to be fulfilled. This
provision has been discussed to
have a contrary effect to its actual
purpose by reinforcing patriarchal
norms and curtailing women’s
autonomy, threatening and
restricting live-in relationships
based on inter-caste and
inter-religious lines, and lastly,
creating ambiguity in defining the
law and urging progressive
judicial interpretation.
The authors thank the anonymous reviewer for
their valuable suggestions, which immensely
helped in improving this article.
S M Aamir Ali (smaamiraliofficial@gmail.com)
teaches at the Symbiosis Law School, Pune
Symbiosis International (Deemed University)
Pune, Maharashtra. Anuska Vashist (anuska.
vashist004@gmail.com) is a student at the
Symbiosis Law School, Pune. Anuttama Ghose
(anuttamaghose@gmail.com) teaches at the
School of Law, Dr Vishwanath Karad MIT
World Peace University, Pune.
18
T
his article is a continuation of the
series of Law & Society columns
published in EPW with respect to
the Bharatiya Nyaya Sanhita (BNS), 2023
and the changes brought by the union
government within the act in replacing
the Indian Penal Code (IPC). In this article,
the insertion of Section 69 of the BNS is
discussed, which criminalises the “false
promise to marry” through an argument
based on how the continuation of Section
69 of the BNS attracts more harm than
benefit to society, which has been entirely
ignored by the government even after
facing harsh criticism of the first draft.
This provision seeks to punish men who
lure women into sexual relationships by
concealing their identities or by a promise
to marry later and then leave them
stranded. The section aims to punish the
accused with an imprisonment of up to
10 years and a fine. Under the same
section, the act construes the false
promise of employment or promotion
under “deceitful means.”
False Promise to Marry under
the IPC
Before the introduction of Section 69 in
the BNS, the courts in India interpreted
cases of sexual intercourse on false
promise to marry under Section 375,
read along with Section 90 of the
IPC. Section 375 defines consent as an
“unequivocal voluntary agreement when
the women by words, gestures or any
form of verbal or non-verbal communica-
tion, communicates willingness to par-
ticipate in the specific sexual act,” and
Section 90 defines that consent obtained
under “fear of injury” or “misconception of
facts” is not a valid consent (Kalia 2023).
The courts have found it challenging
to identify intent and consent in the cases
of false promise to marry and have
distinguished between “false promise”
and “breach of promise” over a few dec-
ades. After many conflicting high court
MAY 4, 2024
State Karnataka (2003) clarified its posi-
tion by observing that whether a false
promise to marry amounts to rape must
be decided on a case-by-case basis. It de-
pends on whether a man obtained con-
sent under a false promise to marry and
had never intended to marry the wom-
an, or the man believed that the woman
gave consent based on a false promise to
marry (Project 39A 2023).
Subsequently, in Dileep Singh v State of
Bihar (2005), the accused was acquitted by
the Supreme Court for a breach of promise
on no evidence of the intention of the man
not to marry the girl even when he was
accused of rape on the basis that a genuine
reason for not fulfilling the promise
cannot be equated as an act of rape. This
is when the apex court’s interpretations
also create ambiguity in identifying a
mala fide nature of the promise. After
Dileep Singh in Deepak Gulati v State of
Haryana (2013) and in Pramod Suryabhan
Pawar v State of Maharashtra (2019), the
court recognised that when a promise of
marriage is made with an intention to
break it, the consent obtained will be de-
termined as a “misconception of fact”
and be considered as rape. In 2023, the
Supreme Court in Naim Ahamed v State
(NCT of Delhi) discussed a new dimen-
sion to such cases by observing whether
consent was gained under a false promise
to marry given from the very beginning or
if there was any reason for the change of
a genuine promise to marry to the false
promise to marry at a later stage of the
relationship. By applying this jurispru-
dence, the courts in India have enforced
social hierarchies such as caste and reli-
gion, as critics have argued (Garg 2019).
Section 69 of the BNS has merely codi-
fied the offence previously interpreted
under the IPC without clearly distinguish-
ing between false promise and breach of
promise, thereby having no effect in clear-
ing the ambiguity under the existing laws.
Intention to Marry
Section 69 requires to fulfil three criteria
for the act to be an offence: (i) gaining
consent by deceitful means; (ii) making
a false promise to marry without inten-
tion to fulfil it; and (iii) having consen-
sual sexual intercourse with a woman.
vol lix no 18 EPW Economic & Political Weekly

The jurisprudence, precedents, and the
provisions under criminal law have, to
date, not been able to define intention and
consent. Civil law has expressly defined
the term “free consent,” providing a def-
inite course of interpretation of laws
and a quick disposal of judgments. On
the contrary, criminal law faces numer-
ous complexities in determining valid
consent, making it impossible for the
parties, litigants, and judges to prove
and interpret cases. Section 69 is based
on the two most intimate acts, that is,
marriage and sexual intercourse, and the
former holds a more significant influence
on the latter because sexual intercourse
is first influenced through psychological
and biological factors and second is
conventionally opposed by Indian society
before marriage, thereby making a
promise of marriage more convincing. In
such circumstances, proving valid con-
sent becomes extremely difficult, and
the new law seems ineffective in defin-
ing the same.
The second ingredient is intention,
which is a psychological and intrinsic
factor of a human being and cannot be
proved by a second person. The criminal
jurisprudence has, to date, not provided
a set definition of intention, and litigants
find it impossible to prove it in a court of
law, which has the same effect in the
cases of false promise to marry. While
“deceitful means” may be proved through
the acts of the accused, the mala fide
intention, which is the core ingredient,
may not be legally proved. The codification
of the offence of false promise to marry
has narrowed the interpretation of the
offence, making it disadvantageous to
the genuine victims of such an offence.
Ambiguous Application
and Overlap
Section 376C of the IPC (Section 68 of the
BNS) covers situations where there was
consent at the time of the sexual inter-
course, which was not vitiated. But the
terminology “not amounting to rape”
under Section 69 of the BNS causes ambi-
guity as deceit conceptually vitiates
consent; and so does a breach of promise,
which involves the accused not having
any intention of going through with
the promise (Satish et al 2023). Further,
Economic & Political Weekly EPW MAY 4, 2024
Sections 68 and 69 of the BNS are
observed to overlap with each other. The
former criminalises the use of fiduciary
relationships or the power of authority to
coerce women into sexual intercourse,
and the latter criminalises sexual inter-
course by deceitful means and false
promises to marry (Project 39A 2023).
While Section 68 provides a clear defi-
nition of the term “sexual intercourse,”
that is, sexual acts beyond penile-vagi-
nal penetration, Section 69 continues to
be ambiguous about the term. Moreover,
Section 69 fails to provide a minimum
punishment and only prescribes a maxi-
mum punishment of 10 years. Through
this provision, the government retains
the colonial penal philosophy by over-re-
lying on imprisonment and mandatory
minimum punishment to invoke fear in
the people’s minds.
Curtailing Women’s Bodily
Autonomy
Feminist scholars have argued that the
law permits the terrorisation and sexu-
alisation of women’s bodies (Frug 1992).
The courts interpreted the offence of
false promise to marry under rape as
these cases were at their peak in 2016,
and the main target were women who
either belonged to educationally and
socially backward classes or were inca-
pable of seeking legal remedies. The
courts aimed to punish the accused
with the same punishment as rape as
consent was not free and created a fear
of deterrence.
Feminist scholars have also raised a
concern regarding the interpretation of
false promises to marry by the judiciary
under the IPC, where free consent of a
woman is subjected to acute scrutiny.
Through a series of precedents, it can be
observed that consent given by a woman
is not considered to be violated based on
her age, past sexual experiences, marital
status, education, and societal background
(Garg 2019). It is assumed that the
woman is mature while giving consent if
they satisfy any of the said criteria. This
interpretation has been a significant
impairment to the autonomy of women
and reinforces patriarchal norms.
The courts have exempted the accused
from a breach of promise when the promise
vol lix no 18
COMMENTARY
of marriage is broken due to genuine rea-
sons. However, this is merely circum-
stantial evidence and does not prove the
man’s mala fide intentions (Tiwari 2021).
In such cases, the man’s intentions become
the core issue of the case and shift the
burden of proof on the woman to prove
that her consent was violated. The codifica-
tion of an offence creates more ambiguity
in proving a man’s intention. It takes away
the autonomy of a woman to give free con-
sent or have a mind of her own to perform
consensual sexual intercourse (Karwa
2023). The law re-victimises women re-
gardless of their educational or societal
background. Previously, such cases were
judged through courts’ interpretation,
giving them a broader scope and room for
improvement. However, the codification
of the offence needs to be clarified and
made consistent with its purpose of safe-
guarding women’s rights.
Endogamy and Interfaith
Relationships
India has historically followed the con-
cept of endogamy even before we gained
independence, and it has been a massive
struggle since then to abolish it and find
a way forward that allows a person to
choose their partner freely. Section 69
of the BNS becomes a tool to curtail that
freedom. It acts as a threat to bring back
the struggles and oppressions from the
past, which have led to not only the
exploitation of women but also men
belonging to lower castes or marginal-
ised communities. It could be argued
that Section 69 of the BNS will promote
endogamy within society under the
umbrella of allegedly safeguarding
women from sexual exploitation. This
can be foreseen in circumstances where
the guardians of the couple gain know-
ledge of the premarital sexual relation-
ship of the couple, thereby initiating
criminal proceedings of rape, especially
by the guardians of the girl under Sec-
tion 69 of the BNS (Vishwanath 2023).
The fear of criminal proceedings under
Section 69, not for a lack of consent but
because of consent, will act as a tool for
promoting endogamy.
On the contrary, it is argued that by
the introduction of Section 69, women will
be safeguarded from sexual exploitation
19
COMMENTARY
through unlawful conversion to a different
faith by deceitful means. Some people
have suggested codifying such a law to
prevent cases specifically of “love jihad”
(Nath 2023). The law protects the rights
of women who are lured into acts of sex-
ual intercourse on the promise of mar-
riage and then converted into different
faiths. The same has proven to have no
remedy through judicial interpretation.
While the concerns of coerced conver-
sion and sexual exploitation hold valid
ground, they also raise the possibility of
restricting interfaith marriages and get-
ting couples targeted based on their reli-
gious or caste identity. It can be argued
that there is nothing like “love jihad,” as
the government failed to provide any
data on this phenomenon (Sonkar 2022).
Adult men and women are free to marry
as it is their fundamental right protected
under the Constitution, and also their
right to convert, which is guaranteed by
the fundamental right to religion. The
issues concerning relationships and
marriage are personal, and criminalis-
ing “a promise to marry” without prov-
ing the requisite intention would be
tantamount to infringement of people’s
right to privacy.
Instances such as the Government of
Maharashtra’s resolution to track inter-
faith/inter-caste marriages, which insidi-
ously target “love jihad” or seeks to “rec-
oncile” “estranged” women with their
family, highlights the government’s endo-
gamous stand that one should not marry
outside one’s faith (Chander 2023). With
such a law in force, the government aims
to promote endogamy while denying
women sexual agency and any live-in
relationship outside their caste, religion,
or culture. These initiatives by the govern-
ment prove to be contrary to their true
nature as they target only interfaith rela-
tionships, putting them under the spot-
light and raising a reasonable suspicion
of a certain political and religious idea
sponsored by the government.
Another reason for rising endogamy
and hurdles faced by interfaith couples
is that under Section 6 of the Special
Marriage Act, 1954, it is mandatory to
publish the intention of the parties to
marry for a period of 30 days for raising any
objections against the notified marriage,
20
and during this period, interfaith cou-
ples face societal pressure, harassment,
or even violence (Bhandare and Karwa
2020). The cases of killing over interfaith
marriages by the family of the other par-
ty is an unfortunate yet frequent conse-
quence of interfaith marriages. In fact, in
many circumstances, the courts have
failed to provide protection to these in-
terfaith couples (Ahmed 2024). In light of
these challenges, the provision under
Section 69 of the BNS will become a
weapon in the hands of the executive to
curb many interfaith marriages.
Conclusions
The BNS has made no significant changes
after being given a more profound analysis
by the Standing Committee. Section 69
faced an intense backlash and criticism
from legal scholars and academicians as
it could result in casteist and religious
prejudice and discrimination. When
initially introduced by the committee, the
law was based on replacing the colonial
roots from Indian legal history. However,
promoting caste and religious endogamy
through such laws has counteracted the
entire objective of the act.
Furthermore, the introduction of this
law, along with specific other laws in the
BNS, was to protect the rights of women,
but it has proven to significantly position
them at a weaker status and question
their autonomy in the act of consensual
sexual intercourse, thereby promoting
the already existing patriarchal norms in
the society. The law has created a dichot-
omy between the Indian gender roles in
society. The essentials to prove the man’s
intention leave a very narrow approach
for a remedy for women, resulting in a
contradictory effect of the law.
The laws under the BNS have brought
no gender neutrality, a prevalent and
essential factor in contemporary Indian
society. The law becomes a bane to couples
in live-in or intimate relationships with
bitter endings. It becomes a tool for
vengeance, and targets marginalised men
whose innocence becomes challenging
to prove. It is hoped that such a law can
be well interpreted by the judiciary
with a more forward-looking approach
which overcomes the disadvantages of
this law.
MAY 4, 2024
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