On the crime of ‘false promise to marry’

Source: The post is based on the article “On the crime of ‘false promise to marry’”  published in The Hindu on 11th September 2023

What is the News?

The proposed Bharatiya Nyaya Sanhita (BNS), 2023 identifies ‘sexual intercourse on false promise of marriage’ as an offense.

What is Bharatiya Nyaya Sanhita (BNS),2023?

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What does the Bharatiya Nyaya Sanhita (BNS),2023 say on a false promise to marry?

Chapter 5 of the Bill: It is titled as “Offenses against women and children” and describes sexual intercourse by employing deceitful means.

Section 69: It creates two violations:

Deceitful means: It will include false promise of employment or promotion, inducement or marrying after suppressing identity.

False promise to marry: It 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.

Penalty: Both offenses will extract a penalty of up to 10 years of imprisonment.

How does IPC deal with cases of false promise to marry?

IPC dealt with these cases through a joint reading of Sections 375 and 90 

Section 375: It defines rape and defines consent as “an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates a willingness to participate in the specific sexual act.”

– This section lists 7 types of consent which would amount to rape if violated including the consent taken through fear of death, hurt or intoxication.

Section 90: Consent, given under “fear of injury” or “misconception of fact,” cannot be considered as consent.

What is the difference between false promise of marriage’ vs ‘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.

The SC observed that 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.

Put simply, 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. 

What did the Supreme Court say on a false promise to marry?

In 2021, the Supreme Court reiterated that under Section 375, a woman’s consent must involve an active and reasoned deliberation towards the proposed act.

In 2023, Supreme Court said every breach of promise is not rape.It said “One cannot deny a possibility that the accused might have given a promise with all seriousness to marry her, and subsequently might have encountered certain circumstances unforeseen by him or the circumstances beyond his control, which prevented him”.