Section 69 BNS : Good Intention Law But Prone To Gross Misuse

Last week, three bills introduced in the Parliament created a storm among the legal communities in social media. These bills viz. Bharathiya Nyaya Sanhita Bill, Bharatiya Nagarik Suraksha Sanhita Bill and Bharatiya Sakshya Bill, are nothing but an intended replacement of “Codes” and “Act” which are foundational to criminal law : Indian Penal Code, 1860 (IPC), Code of Criminal Procedure, 1973 (CrPC), and the Indian Evidence Act, 1872. Although many provisions in the proposed “Sanhitas” and “Adhiniyams” are identical to the present and soon-to-be erstwhile “Codes” and “Act”, there is one section that created extensive debate: Section 69 of Bharatiya Nyaya Sanhita.

Section 69 BNS reads as follows: 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. Explanation: “deceitful means” shall include the false promise of employment or promotion, inducement or marring after suppressing identity

Although the section is new, it has its genesis in one highly contentable interpretation given to rape by the Apex court. It was not very uncommon to hear about a case where a man gets booked for rape although the sex was admittedly purely consensual.  Consensual sex becomes rape only because he refuses to marry the girl. The Supreme Court constricted such an interpretation but still made it rape if he made a false promise of marriage and the sex happened on account of that promise. For instance, in Dr. Dhruvaram Murlidhar Sonar Vs. State of Maharashtra (2019) 18 SCC 191, the Supreme Court, interpreting the Section 90 and Section 375 of IPC, Court observed: There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 IPC.“

In my view, it is a fallible proposition but understandable from the historical context of women being valued through their chaste. Thus the new section 69 BNS is nothing but a reproduction of that proposition except it shedds the absurdity of terming a consensual act as rape. However, it retains the irrationality of making it a criminal offense but this time under the heading of so-called false promises. 

Why is this law so fallible and on top of it, highly pernicious?

It is because it predicates upon paradoxical premises. 1) The woman is so conservative and she gets so affected if she has had sex with anyone but her husband and the “damage” to her in that event merits 10 years of incarceration for the man. 2) Yet, the same woman, despite being aware of such a “tremendous” risk, can not wait till marriage. The only rational explanation that can justify the above paradox is the assumption that the woman is so conservative and yet so naive. It is a highly dubious assumption in my view. Even if this overstretched logic is accepted, the section is savors of impracticalities that make many men susceptible to false accusations. Why is it so?

False promise is easier to be defined but difficult to be proved. It goes to the state of mind of a person. For other crimes, the state of mind can be relatively gauged easily by the attending circumstances. For eg: if an attack happened following a heated exchange of words, the state of mind is not difficult to ascertain. But in this offense, the attending circumstances are not just unhelpful but will be highly misleading. The act involved here is, by its very nature, overwhelmingly emotional. A man making the promise is not guided by a rational mind but by high-running emotions with a mix of lust. Overwhelmed by lustful emotions, he may not think about his ability to honor the promise. An impetuously made promise is not an offense according to this section. The problem lies when his entirely emotional action is viewed through a rational prism in the trial. Every action of the man will be presumed that he made it after the application of mind. But in reality, he would have made it by succumbing to love and lust. Let’s consider the below example:

A man is engaged to a girl. But, he does not feel very attracted to her but his family’s compulsion makes him acquiesce. He happens to meet a girl to whom he feels very attracted and she reciprocates the feeling too. Overwhelmed by romantic feelings, he makes a promise that he will marry her and they both indulge in lovemaking. However, after some time reality dawns on him and he does find not this girl very compatible. Moreover, he is unable to garner the courage to break the engagement of the first girl fearing incurring the wrath of his family. After the romance and lust ran their course, he finally decides to marry the girl he originally got engaged to.  Now, the second girl files a complaint under section 69 BNS. 

In this example, what he did was morally questionable but certainly not an offense even under section 69. The promise he made was not false and he didn’t intend to renege on it while making it. But, it is hastily made without thinking it through. He merely didn’t honor the promise. But, in the trial, the judge will take the attending circumstance into consideration to determine whether the promise was false or not while making it  The fact that he was engaged while making the promise and his decision to finally marry that girl after the romantic interlude with the complainant, will strongly suggest that he did not mean it while making the promise. The judge will draw a presumption that all his actions are taken after application of mind. But, in reality, he was completely swampedwith lust and emotions. Sadly, he will get convicted for this offense. 

Besides this, there are many possible scenarios where a false complaint can be filed. Although it is the prosecution who has to discharge the burden of proof, an innocent will get wrangled in a protracted prosecution, the argument that it is the same for all other crimes does not hold water for one reason, actus reus of other crimes is so distinct from this one where if sex is involved, and prima facie case can be easily made out. 

So, in my view, Section 69 BNS is an understandably good intention law which is not just marred by the pernicious risk of gross misuse but also reeks of impracticalities. 

Column by Law Student Arun Kumar A. Views are personal.