The proposed Bharatiya Nyaya Sanhita or BNS, may soon replace the Indian Penal Code or IPC, a piece of legislation that has dealt with crimes and their punishments since 1860. One of the clauses under the BNS, clause 69, has recently sparked off a debate. Clause 69 says that if a man promises to marry a woman, but does not actually intend to marry her, and still has consensual sex with her, this will amount to a criminal offence. Sex under deceitful means or false promises to marry, may be punished with a prison term that can extend up to 10 years. With this a separate section has been carved out, differentiating these cases from rape cases.
Criminalising sex based on a false promise to marry is not new: the courts in India have interpreted such cases as rape for years, relying on sections 375 and 90 of the existing IPC. With the proposed clause 69 though, consensual sex can be framed as rape, if a man does not carry out his promise to marry the woman. There’s another element to this: Indian courts so far have distinguished between cases where the promise to marry was false from the beginning, and a breach of promise where the man intended to marry the woman, but could not do so for “legitimate reasons”. These reasons, as per judgements can be parental opposition, or, if the parties are from different castes, the courts have indicated that the woman should have known marriage would not have been possible.
But how can the intent to marry be established? What happens when the first instance of sex was forced, and subsequently, a promise is made to marry, but is then not carried out? Should criminal law play a part at all in intimate relationships? And do such provisions undermine the sexual autonomy of women or are they the only way women can claim for damages when they have been harmed in a relationship?
Guest: Nikita Sonavane is a lawyer and co-founder of the Criminal Justice and Police Accountability Project (CPA Project). She was a visiting fellow at the University of Oxford
Host: Zubeda Hamid
Edited by Sharmada Venkatasubramanian
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