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New Delhi: A provision in the Bharatiya Nyaya Sanhita (BNS) that criminalises sexual intercourse through deceitful means like making false promises of marriage or jobs has left legal experts worried, as they feel that it is a recipe for misuse and will open “floodgates” of litigation.
Experts argue Section 69 of BNS could be misused as one saw in the case of Section 498(A) of the Indian Penal Code, despite it being considered as a progressive provision that has come to the aid of thousands of harassed married women. They argue that an accused would find it difficult to prove his innocence.
Section 69 says, “whoever, by deceitful means or by making 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.”
'Deceitful means' in this section is defined as “inducement for, or false promise of employment or promotion, or marrying by suppressing identity”.
While prominent lawyer Vivek Tankha, a senior Rajya Sabha MP, has said that the section has “too wide” definition that could lead to misuse, senior lawyer Mahalakshmi Pavani finds it as “outrageously derogatory” as it would also mean that women are “willing to jump into bed” on the promise of marriage or jobs or promotions.
“How can they draw this analogy?” she asked while calling the section as the byproduct of a “misogynist” mindset and something that is a double-edged sword which ends all relationships.
“By making this provision, you have opened a floodgate of complaints. Now everytime there is a break up, there is a risk of a female partner filing a complaint. Nowhere in the world I have seen such a provision,” Tankha said adding, the country has added one more provision to misuse.
"The criminalisation of breach of promise to marry is an important check. However, the provision is prone to misuse equally. The punishment upto ten years ex facie disproportionate," senior lawyer Mohan Katarki said.
“How do you prove a relationship is not working? You do not record all calls or messages. One call is going to finish a man for ten years. How do you prove the intent to deceit?” Pavani said adding there are no proper definitions in the BNS.
She said the dictum has been “innocent till proven guilty” but in this section, the accused is presumed guilty already. It becomes a burden on the accused to prove that he is innocent. She said she had seen several cases in her career where the women has victimised men when relationships go the other way.
Tankha said his experience shows that such provisions “get misused for personal vendetta” and there are no safeguards provided in the BNS to tackle it.
“One may be conservative but the world is no more conservative. We may not like it but live-in relationships are common. Acrimony between two people can get more bitter and it can lead to cases that are not genuine and this section is an addition to it,” he said.