Understanding the law that criminalises sex based on a false promise to marry

They met in 2017 over a phone conversation. She was then working at a call centre. They met a few times and in January 2019 began a sexual relationship. She now says it was forced and he had threatened her. In September she filed a police complaint accusing him of rape. He filed a petition in the Delhi high court to have the complaint quashed. Nope, said the court. He came to the Supreme Court.
This week, a two-judge bench of justices BV Nagarathna and N Kotiswar Singh ruled that a consensual relationship which doesn’t end in marriage cannot be given a criminal colour. It ordered the police complaint to be quashed.
In October, another two-judge Supreme Court bench quashed criminal proceedings against a man accused of raping a woman and impregnating her on the ‘pretext of marriage’. Justices CT Ravikumar and Rajesh Bindal said there was a history of consensual sex and the couple had even lived together. They could not categorise the relationship as rape.
Sex, even if consensual, based on a false promise to marry is an offence under section 69 of the Bharatiya Nyaya Sanhita. So if a man persuades a woman to have sex with him by promising to marry her but has no intention of fulfilling that promise, by law that is rape. If convicted he can be sent to jail for up to 10 years.
A 2013 study of rape trials in Delhi’s district courts found that one in four came under the category of “false promise to marry”.
Consent is central to the definition of rape. Did she consent by word or gesture? Equally, how consent is obtained is important. If she was drunk or drugged; if she was threatened, blackmailed or coerced; if she was promised a job or promotion, can that really be considered consent?
Clearly not. What about a promise of marriage, one that the man has no intention of keeping?
“False promise to marry” makes several assumptions about women’s agency and place in society. First it assumes that a ‘good’ woman will never consent to a sexual relationship outside the bounds of marriage, or at the very least the promise of one. Second, it is offensive in its assumption that all women who have sex outside of marriage are gullible innocents who must be protected by the state through legislation And third, there is the assumption that a woman who has sex with a man other than her husband, or intended husband, is ruined for life.
These patriarchal and, frankly, out-of-date assumptions make a false distinction between good women and bad ones where the bad ones are those with sexual desire. It is blind to the sexual autonomy of adult women in making decisions, even ill-judged ones. Sadly, rape adjudication is littered with judicial pronouncements and moralising sermons on the ‘bad’ woman who is independent and owns her sexual history.
It’s not just patriarchy. Underlying the ‘false promise to marry’ argument is the question of intent. After all, people change their mind all the time and that in itself cannot be a criminal offence. So, judges must weigh in to see if the promise of marriage made before sex was genuine or whether it was just a ruse for sex?
To do this, judges tend to fall back on social stereotypes about caste, gender and sexual history.
In a 2003 Supreme Court judgment, Uday v State of Karnataka, Uday was appealing against a high court judgement that found him guilty of rape. The case against him was filed by a woman who said she had agreed to a sexual relationship only because she was in love with him and he had promised to marry her. When she got pregnant, he kept finding excuses—his house was being constructed, he would surely marry her at some later stage and so on. After the baby was born when there was still no marriage, she lodged a police complaint.
The woman came from the Goundar community, listed as OBC (other backward caste) in Tamil Nadu. The man was Brahmin. The woman was aware of the “consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations,” the judgment noted. “She freely, voluntarily, and consciously consented to having sexual intercourse.” There was no rape, the judges said.
The Uday judgment invoking caste disparity as a legitimate reason to not marry became a sort of template for further judgements and “allowed courts to use social constructions of age, gender, caste and social standing to determine intention,” says PhD scholar Surbhi Karwa. In an opinion piece, Nikita Sonawane of the Criminal Justice and Police Accountability Project writes, “In its recognition of caste as a legitimate barrier to marriage, the court seems to suggest that women who fail to adhere to caste hierarchies ought to pay the price for it.”
In a very real sense, a law that ostensibly protects victims from unscrupulous men blames some of those victims for not knowing better.
Were you not aware of caste considerations?
You are divorced, how could you believe his promise to marry?
The problem, says Karwa, “false promise to marry” is inherently vague. And courts now make a distinction between situations where there was never any intention to marry and where there was original intent that changed because of circumstances.
In Pramod Suryabhan Pawar, the Supreme Court told the Dalit victim that despite being aware of social obstacles she continued a relationship with her dominant caste lover. He had promised to marry her and then kept finding excuses—marriage of elder sister, marriage of younger sister—and eventually married another woman.
“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 so,” ruled the court as though the fact of their castes came as new development to the relationship.
The man was acquitted.
[Read more: In Behanbox, Surbhi Karwa on the reliance of caste and gender stereotypes in adjudicating rape case on the “false promise to marry.]

The following article is an excerpt from this week’s HT Mind the Gap. Subscribe here.