Love is often blind but the law should be not. ‘Bad law’ and ‘bad in law’ are two totally different things.

The newly introduced Section 69 of the Bharata Nyay Sanhita (BNS) says: “Whoever, by deceitful means or by making a promise to marry to a woman without any intention of fulfilling the same, 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.”

 These “deceitful means” in the law include inducement through false promises of employment, promotion, or marrying by concealing one’s identity.

 Previously, such situations were dealt under Section 90 of the IPC, which stipulated that sexual intercourse couldn’t be consensual if there was a “misconception of fact. This could earlier lead to charges under Section 375 of the IPC, which outlines the legal definition of rape.

The interpretation of ‘misconception of fact’ under Section 90 of the IPC was very vague and had often lead to miscarriage of justice. The new law also does not appear to have solved anything substantially. The pronunciation of the new laws (Bharat Nyay Sanhita) is a bit of a tongue twister. At the same time, Section 69 is quite a twister in its own right.

Deceit is a very difficult thing to prove. In life, we get deceived many a times. Often, it is about self-deception rather than someone purposely doing it to us. We tend to believe things that we want to believe in.  A hypothetical case for application of this section could be:

Rahul and Somaa have been cohabiting for the last two years as any other living-in couple. Somaa has been insisting for the last six months that it is time to get married. Rahul on the other hand, is in his comfort zone and does not want additional responsibility at this stage of his life.

Not wanting to upset Somaa, his standard reply all along has been, “I love you sweetheart. I will consider it when the time comes.”

Shocked at finding herself pregnant, Somaa has given a final ultimatum to Rahul. Rahul has acknowledged his parenthood and the will to support the child. He is however still not ready to go the full way.

Not making any headway, Somaa has taken Rahul to court. Charges have been filed by the lawyer under Section 69. Mushy Whattsapp messages, emails and house/ facilities receipts over the last two years have been produced as evidence. There is even a Birthday card presented where Rahul has  written, “I would love to spend this birth and many after, with you dearest Somaa.”

Everything produced indicates a committed couple in deep love. There is however no verbal or written record where Rahul has specifically proposed or made a commitment of marriage.

Somaa has argued vehemently, “Milord, you can see that I have reciprocated his affections and much more, as marriage was supposed to be the natural outcome of our relationship. I have been badly cheated and about to be deserted now. My trust has been broken.”

Rahul’s single-tone plea has been, “There has been no cheating whatsoever in our consensual relationship. My ‘consideration’ of marriage is not a promise of nuptials. I have considered my options and marriage is definitely not for me. I am not walking away from my potential responsibilities. But now I don’t want to continue with someone who has brought me to this stage.”

“Even if an assumption is made that I originally had an inner intention to ultimately marry Somaa, I do not lose the right to change my mind if we discover incompatibility issues along the way.”

“Milord, I have another question in this respect. Why is this law not framed in a gender-neutral way? Is it not possible that a girl can seduce a man by promising him marriage? Would the same provisions of the law apply?”

“These are matters of the heart Milord. Next time I fall in love, do the authorities expect me to sign an affidavit and give it to my partner that I have no intentions to marry her? A lot many couples come together today to establish compatibility or the lack of it. Fear of blackmail will not let such unions to be successful as the underlying basis would be ‘lack of trust’. The whole exercise could be counter-productive in that case.”

 Love is often blind but the law should be not. ‘Bad law’ and ‘bad in law’ are two totally different things.

How do you think that the judge should decide this case within the current framework?  Is there a serious case to revisit Section 69 of the BNS?

Posingly,
Horax (Casper)

Postscript: Rahul is also wondering about the months that he has spent in jail custody whilst the case was sub judice. Loss of his job and social infamy that he garnered, notwithstanding.

  • All names are fictional.

First published at seekmediation.com on 06/07/24

Please share your thoughts with us in the Comments column below.

14 comments

  • Early Bird

    July 7, 2024 at 12:42 am

    The Government’s intent to safeguard women against deceitful marriages and associated religious conversions is quite obvious. The bias towards women is noticeable. This law can however easily become a tool for harassment if the relationship does not work out. Protection for men also needs to be deliberated.

    Reply

  • Sundu

    July 7, 2024 at 4:35 am

    Till they did everything minus child, it is ok.
    But once Rahul & Somaa procreated, then that would morally demand that they give the child a socially acceptable upbringing.
    If they do not marry, then the child ( while not bad in law) will have to live with that ignominy all his/her life.
    So without delving further – that’s my view – 🙏🏼

    Reply

  • Mittal

    July 7, 2024 at 4:47 am

    Well encapsulated.

    I think law however smart cannot address the full complexity of life. But laws needs must be made for society to intervene where it thinks it must. And tyranny of grey areas must prevail as they do anywhere. As an unavoidable byproduct. Perhaps hope lies in evolution . Will come back.

    Reply

  • M Kapoor

    July 7, 2024 at 4:57 am

    Rahul shall ultimately get acquitted but after going through the full session court trial and waste of judicial time.

    Reply

  • kuldeep chopra

    July 7, 2024 at 5:51 am

    Liv-in relationships should be out of ambit of section 69. When 2 adults are living together for years together and do not get married, how can it be called a rape after 2 years? This law is totally one sided as Man will have no option but to marry a women (with whom he is in Liv-in relationship) if so wants otherwise he goes to jail.

    Reply

  • Pradeep H

    July 7, 2024 at 12:36 pm

    It amazes me that you come out with diverse topics every week with such regularity which are thought provoking also.
    My take is different from laws and its clauses (claws) in the BNS or earlier laws as I am not a student of law.
    Young girls and boys at the young age are having relationships (or live in relationships now a days) is nothing new. It’s the hormonal dance which takes over (laws of attraction in physiological terms).
    People call it as a new phenomenon (live in relationship) come to India under the western influence or religious conversions (don’t want to use the term here which is politically sensitive in nature).
    If one recalls the story of Shakuntla and Dushyant in Mahabharat. This happened thousands of years ago. Off course Dushyant got away as he himself was the king (the law – no pun intended).
    I am sure there must be many such cases in every society. We have heard about honour killings (beyond the law or in law) now and then in so called progressive societies as well.
    It takes me back to my one-year stint in Norway as an engineering student in late eighties. During the introductory interactions every lecturer or the industry expert which were part of the visiting faculty and students from various countries introduced themselves and talked about their family and culture etc. One such expert fondly mentioned about his lovely children during the conversation. As it was a big group, and everyone was new to each other. A student from Nigeria who was not attentive and asked him “Are you married?” The gentleman replied in the negative. Everyone was amazed and pointed out to him about introduction of his children.
    He mentioned that he and his live in partner (who also happened to be a professional) for the last fifteen years were not married but have two lovely children. The discussion went on for more than thirty minutes about marriage and live-in relationships or staying together. What he said still rings in my years. He said that it is the commitment, which is more important in a relationship, not the marriage which is a social event. He further said that both sides feel the pain if the relationship doesn’t work out whether live-in or marriage.
    Two individuals who are adults, educated and (responsible!) know what they are going in for and repercussions in our society. Why blame the other party if the relationship doesn’t work? It was consensual and had mutual benefits.
    As mentioned earlier, I don’t want to enter in a discussion regarding political messaging and the laws.

    Reply

  • Anurag Kumar

    July 7, 2024 at 12:37 pm

    Social issues with legal overtones!
    Men & women relationships have been ‘different’ and socially and legally acceptable bindings will have their own perspectives of morality.
    Interesting times ahead sir.😊

    Reply

  • Gerald Fernandes

    July 7, 2024 at 5:46 pm

    Basic to section 90 of BNS is the unfounded assumption that love / sex must lead to marriage.

    Is that assumption legally sustainable ?

    Reply

  • AVM C N Ranganath

    July 9, 2024 at 4:27 am

    On first look, particularly in the Indian context, it is natural to sympathise with the woman even while conceding that she has entered into a relationship with her eyes wide open. This is primarily because of the traditional image of a woman in Indian society and our inability to come to terms with such a woman willingly entering into a living-in relationship with a man. Even if she does, we are generally inclined to believe that she has been enticed or trapped into one by the male partner. Our youth are torn between their traditional upbringing and the desire to break away from established norms of social behaviour. Increasing levels of gender parity in education and economic independence as well as the anonymity of urban living are the other reasons for the increase in live-in relationships. It is very ironic if not amusing that many of the people particularly from the political class who are outraged by unmarried couples living together are themselves no paragons of virtue.
    Living-in arrangements between consulting adults should be looked at as a matter of changing social mores which cannot be regulated by enacting laws on the subject. Any such law is likely to have the opposite effect and also become a convenient tool for the self appointed crusaders of morality who seem to have been given a free hand in the present times.
    My considered view is that the best approach is for the older generation to avoid being judgemental and accept the changing social mores of the times. There is also a need to bring this topic in the open and spread awareness among the younger generation that such relationships should invariably be without strings attached. They should also not expect others to come to their rescue if their living-in relationships go sour. Instead they would be well advised to move on with their lives with the help of emotional support from their family and friends.

    Reply

    • Rajeev Hora

      July 9, 2024 at 6:19 am

      Very balanced and interesting commentary on the evolving state of affairs indeed Sir!

      Reply

  • Rakesh Srivastava

    July 9, 2024 at 4:43 am

    To expect such a law to dispense ‘justice’ in a country with such a milieu of personal laws and social customs – ancient and modern – well….! As Lord Bumble of Oliver Twist fame said “….Law is an ass”

    Meanwhile, interesting that this piqued a senior citizen’s interest. But then we have all the time in the world 😀

    Reply

  • Rajeev Hora

    July 9, 2024 at 6:20 am

    Evolving and interesting times indeed Sir!

    Reply

  • Cmde SK Mahapatra

    July 10, 2024 at 7:26 am

    Very well written article. I think in law, things are kept in the grey zone knowingly so that lawyers can fight the case from both sides convincingly. In law, it hardly matters who is at fault; the case is won by the smarter lawyer.

    Reply

  • Maj Gen Anil Chaudhary

    July 10, 2024 at 8:05 am

    Very relevant issues.
    These challenges are cropping up with increasing frequency in the society. Girls come under more pressure to settle down. Parents and society puts direct and indirect pressure on a girl. Two-way communication, interaction with parents, where feasible, and financial independence are some issues, which will enhance compatibility. Rules should remain the last option of application.
    Cheers !!!

    Reply

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