Last week in the Lok Sabha, while introducing the Bharatiya Nyaya Sanhita bill, meant to replace the Indian Penal Code, Union Home Minister Amit Shah highlighted a new provision related to women.

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

This is encapsulated in Clause 69 of the Bharatiya Nyaya Sanhita, which states: “Whoever, by deceitful means or making by promise to marry to a woman without any intention of fulfilling the same, and 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.”

The bill defines “deceitful means” as “the false promise of employment or promotion, inducement or marring [sic] after suppressing identity”.

Experts, however, have criticised the provision on the grounds that it is legally unnecessary, patronising towards women, and liable for misuse, particularly in cases involving interfaith relationships.

How the IPC deals with such cases

Some have argued that a provision to penalise sexual intercourse on the basis of false promises was needed to distinguish such cases from the offence of rape. Presently, such cases are dealt with under Sections 375 and 376 of the Indian Penal Code, which cover rape.

Section 375 defines the offence of rape as sexual contact with a woman without, among other things, the consent of the woman. Section 376 states that punishment for such crime will not be less than 10 years and may extend to life imprisonment.

Section 90 of the IPC states that any consent given by a person under a “misconception of fact” or “fear” is not valid consent.

The police and courts have traditionally read Sections 90 and 375 together to hold that sexual relations established by a man with a woman under the false promise of marriage, when the man did not intend to honour the promise from the beginning, amounts to rape, punishable under Section 376 of the Code. This is because the consent of the woman to sexual relations was established due to a misconception of fact, and therefore was not legally valid.

At the same time, there is mixed jurisprudence on the subject, with courts on several occasions differing from the position and refusing to consider sexual relations established under a promise of marriage as rape.

Earlier this year, a single judge of the Orissa High Court had called for this legal position to be relooked.

He said that the “automatic extension” of Section 90 to determine the validity of consent for sex needed to be revisited since in his view, the legal position that sexual relations on a false promise to marry amounts to rape is erroneous. The judge also criticised the use of rape laws to “regulate intimate relationships, especially in cases where women have agency and are entering a relationship by choice”, according to LiveLaw.

Persis Sidhwa, advocate and director of Rati Foundation that works for women and children facing sexual violence, said separating the two offences is a logical move.

“Under Section 376, there are a large number of cases where women have given tainted consent for sex. Compared to this, actual cases where women are raped are reported in less numbers under this section,” Sidhwa said, basing it on her experience in dealing with such cases. The National Crime Records Bureau does not have a break up of cases filed under Section 375.

“A different section is not a bad idea,” Sidhwa added, arguing that it will give true representation of both types of cases.

But Sidhwa pointed out that an amendment or a sub section to the existing Indian Penal Code could have been introduced to make this distinction. “We don’t need a separate law for this,” she said.

Unnecessary addition

This resonates across the legal fraternity. Legal experts say that the introduction of Clause 69 could lead to confusion and chaos.

Audrey D’Mello, director of Majlis, an organisation that provides legal aid to women facing violence, said that if the government succeeds in enacting the law, it is a setback for the sensitisation work the organisation has carried over the past several years to train police and activists in legal provisions related to violence against women. It could mean having to hold fresh sessions for training on the new provisions.

“Are we going to start from zero?” asked D’Mello. “You want to amend something, amend it. Don’t bring in a new law altogether.”

She said receiving sexual favours on promise of marriage is already considered an ingredient in rape cases, and several courts have taken decisions based on that. If the victim is a minor girl, then the Protection of Children from Sexual Offences Act provides stringent punishment, she said. “I do not think we need any new structure or new law,” she said.

Essentially, if the government was intent on a separate provision, it could have been done through an amendment. Senior advocate Rebecca M John, too, questioned the need for carving out a separate offence, saying that it is already covered under the provisions of the Indian Penal Code.

Infantilising women

Delhi-based lawyer Shahrukh Alam said that Clause 69 of Bharatiya Nyaya Sanhita minimalises a woman’s agency. “This takes away from women’s ability to think independently and infantilises them,” she said.

Her implication was that in the imagination of such a law, women partake in sexual relations only on the promise of marriage, or in return for material benefits such as employment or promotion in employment. In seeking to protect women from being induced into sex by men, such a law makes the paternalistic assumption that women cannot take such decisions on their own.

Under Clause 69 of the Bill, an accused can attract a prison term of up to 10 years and a fine.

Flagging this, Alam said that adding such a severe sentence seemed dissonant. “Compare this with the maximum punishment of seven years for cheating someone of their property,” she said, referring to Clause 316(4) of the bill, which prescribes the punishment of cheating someone out of their property.

She questioned why a woman being defrauded on a false promise of marriage is more egregious than someone, for instance, being defrauded out of their pension as a result of financial fraud, especially since a marriage contracted after suppressing identity is voidable under law in any case.

The bill “exaggerates the importance of one particular form of fraud on women”, she said.

Liable for misuse

The definition of “deceitful means” or “suppressing identity” introduced in Clause 69 could be misinterpreted and used to target cases of interfaith relationships, especially when a Muslim man and Hindu woman are involved, legal experts said. According to Sidhwa, the police could possibly make use of this section to make the punishment more stringent.

“Love jihad” is a conspiracy theory peddled by Hindu supremacist groups that there is a plot by Muslim men to seduce Hindu women to convert them to Islam. In several rallies in Maharashtra, the Sakal Hindu Samaj, an umbrella group of Hindutva outfits, has raised the issue of “love jihad”. Hindutva groups have filed police complaints of kidnapping and rape against Muslim men in such cases.

With the introduction of clause 69, the police may be able to impose a stringent punishment against the accused.

Several Bharatiya Janata Party-ruled states have passed laws to target interfaith marriages. In such states, the police and vigilante Hindutva groups have prevented Hindu women from marrying Muslim men by citing such laws.

Flavia Agnes, lawyer and founder of Majlis, said that Clause 69 will “give more power to the police to act arbitrarily”. Agnes said that the provision is vague and could be interpreted in multiple ways to “suit the need”.

Alam was more direct: “This is ‘love jihad’ translated into the penal law.”