Section 69 of BNS: “A Well-Intentioned but Poorly Drafted Provision?”
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Author: Laxmi, Delhi Metropolitan Education
Introduction
The introduction of the Bharatiya Nyaya Sanhita, 2023 marks a significant transformation in Indian criminal law that aims to decolonize and bring modernity to the ancient provisions of the Indian Penal Code (IPC), 1860 that came into effect from 1 July 2024. Amongst the reforms, Section 69 of BNS stands out as it attempts to criminalize conduct that lies in a grey area — where sexual activity consent was obtained, but under fraudulent pretences short of rape. The law tries to address a new trend where women are lured into physical intimacy under emotional blackmail, which later leads to psychological trauma, abandonment, and social ostracism.
Text of Section 69, BNS 2023
The exact wording of Section 69, BNS is as follows:“Whoever, by means of deception or by the promise to marry a woman with no 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 punishable by fine.”
This is different from rape law because it specifically addresses non-rape sexual intercourse that is procured by fraud or deception, and especially by false engagement or promise of marriage. Section 69 has been brought into force to remedy the evil of marriages by fraud or concealment of identity or concealment of facts. It can be invoked in cases where there is a complaint that marriages, and particularly intermarriages, have been performed where the man had concealed his identity.
Deceitful Means:
The first offense involves the use of deceitful means, like a false promise of job, promotion, or marriage, with the purpose of inducing sexual relations. If one uses such means, he or she may be punished by up to ten years of imprisonment.
False Promise to Marry: The second crime is the false promise to marry a woman with the intention of going back on that promise, only to obtain her consent and sexually exploit her. This offense is also punishable by a maximum of ten years' imprisonment.
Case laws supporting the legal principles underlying Section 69, showing how similar problems have been solved previously through the Indian legal system. The section draws on these precedents to invoke a particular remedy against women in fraudulent marriages and fraudulent behavior.
Protection from Fraudulent Marriages
Case: Deepak Gulati v. State of Haryana (2013)In this case, the Supreme Court decided the case of a man who had enticed a woman into accepting vows of marriage but failed to marry her. According to the Court’s perspective, promises of marriage which are broken can be considered as rape in cases where a woman consents by deception.This aligns with section 69, whereby deception in marriages is criminalized, and there is also protection from impersonation.
Gender-Sensitive Approach
Case: Lata Singh v. State of U.P. (2006)In this case, the Supreme Court declared the rights of the adult woman to marry one of her choice irrespective of caste or religion and disapproved coercive efforts by families to prevent such marriages.Section 69’s sensitivity to gender understands that women are susceptible to fraud or coercion, particularly in such societies where women lack economic autonomy or decision-making authority in marriage.
Deterrence Against Deceitful Conduct
Case: Uday v. State of Karnataka (2003)The Court ruled over the case of a man who had cheated a woman into marrying him with deceitful promises. It was decided that deceitful promises which corrupt consent can give rise to a criminal offence.Section 69 is a deterrent to such fraudulent practice, rendering marriages based on honest disclosures and protecting individuals against entering into marriages based on misrepresentation.
Historical Context – Pre-existing IPC Provisions
Before the entry into force of Section 69, the courts applied the following sections of the IPC, 1860:
Section 90 of IPC (Consent given under fear or misconception)“A consent is not such a consent as is intended. If the consent is given by a person under fear of injury, or under a misconception of fact.”Courts have held that if a woman agrees to marriage or sex on a false assurance of marriage or employment, then such agreement is not valid, and can invite criminal prosecution such as rape (Section 375) or cheating (Section 415 IPC).
Section 375 IPC (Rape)“Sexual intercourse without legal consent, in that consent is given under a misapprehension of fact, is rape.”This division allowed prosecution in cases where there had been concurrence on an “error of fact.” If a woman had consented to sex in expectation that a man would marry her, and that was untrue, courts would often hold that it was rape. This was not always enforced, however, due to the overwhelming burden of proof and doubt in terms of intent.
Section 415 IPC (Cheating):This section penalized “cheating” and was most frequently employed in the case of false promise of marriage. The penalty was light — imprisonment for a year or fine or both — which was normally out of proportion to the social and emotional harm caused to the woman.
Benefits of Section 69
Safeguard Against Deceptive Marriages: Section 69 provides legal safeguard to persons, especially women, who might have been deceived into marriage through false representations. When a spouse has hidden their identity or misrepresented material facts (e.g., promise of job), this section provides the wronged party with the right to claim justice and compensation. This is a strong measure towards ensuring well-informed and voluntary consent in marriage.
Gender-Sensitive Legislative Perspective: The provision recognizes the susceptibility of women in most Indian marriages, where women are likely to be exploited owing to social and economic power asymmetries. It provides assurance that women, who are the most likely candidates to be taken advantage of, have recourse through the law whenever they are being cheated. This way, Section 69 accommodates the social patriarchal practices that would, otherwise, oppress victims of dishonesty.
Deterrence of Deceptive Conduct: By criminalizing fraudulent marriages, Section 69 conveys the message that honesty and openness are required to enter into a marriage. The section intends to deter people from abusing trust for personal ends, for example, by falsely promising employment or hiding religious or caste identity to cheat the other party.
Legal Clarity: The second major advantage of Section 69 is that it provides legal clarity in contrast to previous sections of the Indian Penal Code (IPC) such as Section 415 (Cheating) or Section 493 (Cohabitations by Deceit). All these older sections were applied more narrowly. Section 69 clearly provides for a means of dealing with deceit specifically in the context of marriage, thereby reducing ambiguity.
Protection from Exploitation: The Act is a protective measure against exploitation at work, where persons might be assured of job or career advancement prospects or offers in exchange for marriage. This aspect provides a platform for persons to take action against those who attempt to exploit them by any deceitful means within such situations, providing a further shield against exploitation within the workplace.
Limitations of Section 69
Vagueness of Legal Terms: One of the most severe criticisms of Section 69 is that it is vague on the definition of key terms such as “concealment of identity” and “deceitful conduct.” What is meant by “identity” is not defined—is it religious identity, social status, economic status, or something else? Vagueness of this sort leaves the law vulnerable to abuse and arbitrary application, with room for legal inconsistency and discriminatory treatment.
Gender Bias: Though the provision is in favor of women’s protection, it can also be seen to be gender-biased. The law itself presupposes that women can be victims of fraud in marriage by themselves and does not consider the factor that men or members of the LGBTQ+ community can also become victims of fraudulent behavior. The law is not gender-neutral because the law is not as inclusive as it could have been and perpetuates gender stereotypes.
Risk of Misuse: The broad brush of Section 69, and its vagueness, increase the risk that it will be applied in an improper or unjustified manner. For example, it can be invoked by families or individuals who are against an intercaste or interfaith marriage, as a tool to criminalise and target personal choices. This risks social surveillance and moral policing, especially in sensitive situations involving intercultural marriages.
Overlap with Pre-existing Provisions: Indian law already had a series of provisions before Section 69, such as Section 90 (consent obtained by fraud) and Section 415 (cheating) of the IPC, which could address the problem of fraud in marriage. The introduction of Section 69 can therefore be said to be redundant. It leaves one wondering whether the law was ever needed, or whether it was a gesture towards the solution of a specific socio-political issue rather than a lacuna in the law.
Constitutional Issues: Section 69 can be argued to infringe the constitutional fundamental rights, i.e., Article 21 (Right to Life and Personal Liberty) and Article 14 (Right to Equality). The law can intrude into the right of an individual to marry whomsoever he or she desires, a right formed in cases like Shafin Jahan v. Asokan K.M. The intrusion of the law into people’s lives and the probability of abuse against consensual interfaith marriages is a critical constitutional issue.
Conclusion
Section 69 — A Poorly Drafted Section with Fundamental Structural DefectsSection 69 of the Bharatiya Nyaya Sanhita, seemingly enacted to protect women from being deceived in marriage, is however marred by some legal and constitutional infirmities rendering the provision ill-drafted. It penalises marriage on grounds of “concealment of identity” or “misrepresentation as to employment or promotion,” but does not define the terms. Such vagueness invites subjective interpretation and, with the consequence, results in potential misuses, especially of intermarriages between individuals following different religions or belonging to different castes. Ignorance of what is to be understood by “identity”—religion, name, caste or profession—is making the law vague and constitutionally suspect.
Finally, the provision is discriminatory on the ground of gender, penalizing men and presuming women to be perpetually victims. This contravenes the doctrine of gender neutrality in criminal law and is blind to the reality of modern relationships where cheating can occur irrespective of gender. Section 69 is particularly redundant when read in light of existing provisions. Sections 90 and 375 of the Indian Penal Code already provided protection against consent with a false promise, and Section 415 dealt with cheating. Judicial decisions in the cases of Uday v. State of Karnataka and Deepak Gulati v. State of Haryana have already dealt with cheating in relationships in the older provisions. Secondly, the provision is perilous to individual freedoms under Articles 14, 15, and 21 of the Constitution, i.e., the right to equality, non-discrimination, and personal liberty.
The Supreme Court reasserted adult freedom in choosing their own life partners in Shafin Jahan v. Asokan K.M. and Section 69 would be abused to interfere with this freedom. Indeed, Section 69 is more a product of socio-political discourses like “Love Jihad” than legal requirement, and it can be targeted at consensual interfaith weddings. A provision of law that lends itself to use in controlling personal relationships is against the spirit of a democratic and secular society.
If legislative intent is to truly safeguard individuals from deceitful marriage, the law must be clear, narrowly defined, gender-neutral, and respect individual choice. Section 69 is a regressive, unwarranted, and ill-drafted provision which must be reconsidered or revoked at the earliest.
