Author: Sara Sharma, University School of Law and Legal Studies
Editor: Ritesh Singh Shekhawat, MJRP, Jaipur
INTRODUCTION
Indian Law has always focused on protecting and promoting women’s rights from unscrupulous, exploitative, and deceitful practices or incidents that may harm their interests or hamper their mental, emotional, and physical well-being. The struggle for equality and equity between men and women has come far from the 1600s, where women were merely seen as tools of physical satisfaction by men; to women now having their own dreams and achievements; from their wings being cut down and shackled to the ground, to them soaring and flying and reaching new heights of advancements- the journey has come far. Such advancements have left women susceptible to new dangers, such as being taken advantage of with false pretenses of marriages for sexual intercourse; or sexual abuse through abuse of authoritative power in firms and organizations.
Recognizing the dire situation and the need to protect women, laws have since been introduced to protect them from such situations, where their consent may be taken through deceit and their integrity and reputation may be at stake.
MEANING, DEFINITION & EXPLANATION
Section 69 of Bhartiya Nyaya Sanhita introduces the concept of sexual intercourse being a crime where consent is obtained by the accused misleadingly through beguiling the plaintiff through disingenuous promises of marriage. The section deals with the legal consequences arising out of such promises. The primary objective is to address situations where individuals make implicit or explicit commitments toward marriage but later repudiate and renege on these promises. The provision has been designed to safeguard individuals from emotional distress and ensure their well-being.
The section applies to different situations, including but not limited to false marriage promises, promotional tricks, and secrets regarding identity. If the accused is proven to be guilty, then the individual shall be punished with prison years extending up to ten years and shall also have to pay a hefty fine.
HISTORICAL BACKGROUND / EVOLUTION
The Bharatiya Nyaya Sanhita was introduced in India on 1st July 2024 in which many new laws were introduced and many old ones were rephrased and modified, including Section 493 of the Indian Penal Code which has been changed into Section 69 of the BNS.
The Indian Penal Code was inspired by the ideals of British morals and principles and was brought into existence in 1860. The purpose of the section was to protect women from any potential harm by way of deceit. It was to make sure that they had a legal safety net to fall back upon if they were ever taken advantage of by being misled into giving consent for sexual intercourse on the false pretense of marriage.
Over various years, the Courts have time and time again highlighted the significance of the section with respect to women and their rights and protections. They emphasized safeguarding women from claims of false/fraudulent marriages.
COMPARISON WITH OTHER COUNTRIES:
The concept of marriage by deceit has existed in the laws and principles of various other countries including France, Canada, Australia, and Germany.
Status in India Regarding Sexual Intercourse By Deceit:
Indian Law considers sexual intercourse by deceit that does not amount to rape, a serious offense under Section 69 of the Bharatiya Nyaya Sanhita. According to the guidelines, the accused may face up to 10 years of imprisonment along with a fine. It was first introduced under the Indian Penal Code, 1860 as Section 493 which stated that any man who by deceit causes any woman to have sexual intercourse with him by making her believe in a false legal marriage, whether through a live-in relationship or fake marriage, would be subjected to a maximum punishment of 10 years and may also be charged a fine.
Status in France regarding Sexual Intercourse By Deceit:
French Law considers sexual intercourse through deceit as Sexual Assault under Article 222-23 of the French Penal Code which state that sexual intercourse that is forced upon, or coerced into, or obtained by threat, is considered as rape.
According to French law, rape is a punishable offense that is subjected to imprisonment for up to 15 years.
Status in Canada regarding Sexual Intercourse By Deceit:
Canadian Law considers sexual intercourse through deceit under the provisions of Sexual Assault under Section 265 of the Canadian Criminal Code, which talks about consent. According to the provision, consent is invalid if it is acquired by fraud. Therefore if consent is obtained through misleading the plaintiff such as lying about identity, making false promises regarding marriage, or involving an unstable power dynamic.
In Canada, the case of R v. Hutchinson (2014) proves the seriousness of the subject of deceit undermining consent, wherein the accused convinced his partner to engage in sexual intercourse, provided he made use of a condom. Hutchinson agreed to do so but poked holes in the condom, following which the partner became pregnant. He was convicted by the court of aggregated sexual assault.
CAUSES / EFFECT RELATION WITH OTHER CONCEPTS
Previously handled under the Indian Penal Code, section 69 now focuses on providing a safety net to women against manipulation by perpetrators. It aims at the protection of victims against emotional distress and dilemmas caused by deceit and ensures their mental as well as physical well-being. It aims at bringing them to justice in this sense.
The provision also reflects a recognition of the severity of the issue that is sexual intercourse by deceit due to false promises of marriage; and a deeper understanding of the same, witnessing that it has been differentiated from sexual assault and given a different category. It recognizes that society may be advancing towards a more critical mindset of Westernization wherein the societal norms are becoming accepting of sex before marriage, live-ins, and changes in relationship dynamics.
However, the provision has also set off a chain reaction by critiques that raise valid points- it may highlight a negative stigma towards men, giving rise to gender biases towards men and may cause emotional distress. The critiques have raised various warnings that this section could have a chilling effect on consensual relationships and could make misunderstandings easily prone to becoming criminal charges.
False accusations by women have been recognized as a critical issue in the past and the section seems to amplify this fear. There have been numerous cases in the past which highlight that women have purposefully trapped men into such cases for numerous reasons such as causing defamation, harm to mental well-being, and making them outcasts in society. The case of the State of Uttar Pradesh Vs Nisha, 2018 showcases the same- the mother of a woman named Nisha filed a false complaint against 5-6 people wherein they kidnapped her and subjected her to repeated acts of sexual assault. She later took back her statement and was sentenced to four years in prison by the court.
FORMS / MODES OF SECTION 69 OF BHARATIYA NYAYA SANHITA: SEXUAL INTERCOURSE BY DECEIT
Deception Regarding the Identity or Nature of the Act
- Identity: This involves the perpetrator misleading the complainant by deceiving the person about their identity (for example, portraying the image of being somebody else, or lying about anything that may prevent the other person from consenting towards sexual intercourse otherwise) and obtaining consent for sexual intercourse.
- Nature of Act: The perpetrator may fool the complainant by misrepresenting or lying about the true nature of the act (for example the perpetrator may claim that the act is being done as a medical procedure) to obtain consent for sexual intercourse.
Deception through Statements
The perpetrator may make false promises or may make false statements on purpose that may normally impact the consent of the plaintiff.
Misuse of Power Dynamic
There are times when the perpetrator may exploit the victim by holding a higher authority over the individual to pressure and deceive the victim into consenting to the act.
ESSENTIALS / ELEMENTS / PRE-REQUISITES OF SECTION 69 OF BHARTIYA NYAYA SANHITA
Deception or Fraud
Section 69 of Bharitya Nyaya Sanhita clearly states that it is based upon the core condition that consent for sexual intercourse must be obtained through deceit or fraud which may include deceit by promises of marriage or by manipulation through abuse of power.
The perpetrator may withhold information that would otherwise affect the consent of the victim towards the act.
Consent
Consent obtained by the perpetrator must be voluntary and informed to the victim.
The consent is considered to be invalid if obtained through deceit. The consent of the victim is invalid if it is obtained by omission of any important information which may potentially affect the decision of the victim.
Criminal Intent
Mens Rea (Guilty Mind): If the perpetrator has an intention of misleading the victim to gain consent, then it indicates that the deceit was intentional and not accidental.
Nature of the Crime
The lies or omissions by the perpetrator must be substantial and must hold enough weight to play a significant part in the decision of the victim.
Defences of Section 69 of Bhartiya Nyaya Sanhita
Absence of Deceit
The primary defense to section 69 of Bhartiya Nyaya Sanhita is to prove that there was no deceit or fraud involved.
The accused may provide evidence to show that there was no intention to deceive the plaintiff by showcasing that the information provided was truthful and just.
Genuine Consent
The accused can defend themself by stating that the plaintiff was provided with complete, accurate, and true information and therefore gave voluntary consent for sexual intercourse.
Honest Mistake of Fact
The accused may attempt to prove that there may be a misunderstanding that may have occurred between the accused and the plaintiff that caused the plaintiff to provide voluntary consent based on the statements said.
It may be proven that there might be an error in accurately depicting the meaning of the statements or beliefs depicted.
Exceptions to Defenses provided
Burden of Proof of Deceit
The prosecution can provide evidence in court that the deceit that occurred is intentional to disprove or undermine the defenses relating to no deceit or informed consent.
Legal Interpretation of Consent
It is up to the Courts as to what constitutes valid consent. Courts may apply stringent standards as to what constitutes consent; therefore if the legal standards to voluntary standards are not met then the defense of Voluntary Consent by the defendant may not be taken into consideration.
Intentional Misrepresentation
The prosecution may prove that the deceit was deliberate and intended to misguide the other party into giving consent. This may undermine the defenses based on an honest mistake of fact.
Legal Provisions / Procedure / Specifications / Criteria of Section 69 of Bhartiya Nyaya Sanhita
Definition of Deceit
Section 69 defines consent obtained through deceit for sexual intercourse. This definition includes deceit through intentional misrepresentation, manipulation of facts, and concealing of crucial information that may affect or determine the consent of the plaintiff.
Informed Consent
Consent provided by the party must be voluntary and not based on any misrepresented, concealed, or manipulated information; otherwise, it is considered to be invalid.
Conviction Punishment
The section specifies the punishment for the convicted- a term of a maximum of ten years, combined with a fine.
PROCEDURE UNDER SECTION 69 OF BHARTIYA NYAYA SANHITA
Filing of complaint
The victim may file a complaint with the relevant authority, specifying the nature and impact of deceit and consent.
Investigation
The police are then addressed and directed towards looking into the matter and conducting an investigation to gather evidence.
This includes interrogation of any potential witnesses, collecting forensic evidence, and examining crucial information.
Charges
The police may file charges under section 69 of the Bhartiya Nyaya Sanhita based on the evidence collected; specifying the nature and act of the deceit and the consent.
Trial and Evidence
The case proceeds with a trial, where the prosecution and the defense are required to present their arguments. The prosecutor must prove that the deceit did occur and that it affected the consent of the victim.
The defense must prove through evidence that there was no occurrence of deceit or that the consent was voluntary.
Judgement and Sentencing
The court then takes an appropriate binding decision based on the evidence provided by both parties. If the accused is found to be guilty then the court will impose the punishment/penalty as specified under Section 69.
SPECIFICATIONS/ CRITERIA OF SECTION 69
Relevance of Deceit
The deceit must be considered significant enough to impact the decision of the plaintiff.
Any minor or irrelevant misinterpretations may not be considered.
Intent (Mens Rea)
It must be proved that the accused had the intention to deceive the plaintiff and that it was not accidental.
Effect of Deceit
The deceit must have a visible impact on the victim’s consent.
This demonstrates that the victim’s agreement to the act of sexual intercourse was affected by the deceit and the victim might have not consented had there been no deceit.
Evidence Requirements
The evidence provided must prove that the accused clearly engaged in deceitful practices.
Legal Application of Section
Legal Standards are applied to determine whether section 69 is appropriate according to the situation, arguments, or evidence presented.
INTERPRETATIONS OF SECTION 69 OF BHARTIYA NYAYA SANHITA
Section 69 of Bhartiya Nyaya Sanhita aims at criminalizing sexual intercourse obtained through deceit by misleading the plaintiff by twisting facts or concealing information that may be a crucial part of obtaining the consent of the plaintiff.
It aims at the differentiation of voluntary consent from consent obtained by deceit.
Deceit may be made through false promises of marriage; abuse of authoritative power; or voluntary misinterpretation of interpretation.
CONCLUSION & COMMENTS
The initiative taken to pass such a provision and bring it to existence is proof that Indian thinking may be changing towards a more open-minded and futuristic approach, which is commendable. Moreover, it provides women with a sense of mental peace knowing that they have a protective cover over them to save them from such dire situations if they arise. It provides them with the confidence and stability that any wrongdoing whatsoever in this regard will not go unnoticed and they will be brought to justice.
However, the provision may cause more harm than good due to alarms being raised over gender bias. Individuals may take advantage of the law to destroy an innocent person’s reputation and there may always exist a fear of being blackmailed. Therefore, it is important to bring reformations in Section 69 of Bhartiya Nyaya Sanhita to include gender fairness, as the law must treat everyone equally, regardless of gender. The possibility of abuse of the act for personal gain must be diminished, and a there must be protection for consensual relationships.
REFERENCES
Books / Commentaries / Journals Referred
https://www.mha.gov.in/sites/default/files/250883_english_01042024.pdf
Online Articles / Sources Referred
https://www.indiacode.nic.in/handle/123456789/20062?view_type=browse
https://www.scconline.com/blog/post/tag/section-69-of-the-bharatiya-nyaya-sanhita-2023/
Cases Referred
R v. Hutchinson (2014)
State of Uttar Pradesh Vs Nisha, 2018
Statutes Referred
Section 69 of Bhartiya Nyaya Sanhita
Section 493 of Indian Penal Code
Section 222-223 of French Penal Code
Section 265 of the Canadian Criminal Code
