‘Criminalising break ups dangerous’

On Wednesday, three lawyer organisations submitted a memorandum to H K Patil, Minister of Law, Parliamentary Affairs and Legislation of Karnataka, to amend the new laws.

Bengaluru: Section 69 of Bharatiya Nyaya Sanhita, one of India’s three new criminal laws has drawn the ire of advocates in the city. It lays down that anyone who gets into a relationship by promising marriage, indulges in sexual intercourse, and then calls it quits is punishable by law.  

On Wednesday, three lawyer organisations — the Indian Association of Lawyers (IAL), the All India Lawyers Association for Justice (AILAJ) and the All India Lawyers Union (AILU) — submitted a memorandum to H K Patil, Minister of Law, Parliamentary Affairs and Legislation of Karnataka, to amend the new laws. 

Section 69 states that: 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.

Per the explanation of this provision, “deceitful means” includes “inducement for, or false promise of employment or promotion, or marrying by suppressing identity”. 

The organisations that submitted the memorandum are particularly concerned about the part that specifies “suppressing identity”. “We believe this could be used against interfaith and inter-caste marriages,” says Maitreyi Krishnan, president, AILAJ. 

She adds, “The Supreme Court in the ‘Hadiya judgment’ held that the right to marry a person of one’s choice is integral to Article 21 of the Constitution and that matters of belief and faith are a core constitutional liberty and that the Constitution exists for believers as well as for agnostics and that it protects the ability of each individual to pursue a way of life or faith to which she or he seeks to adhere.” 

A remedy for ghosting? 

According to advocate Sagar Nahar, the law may be useful in cases where the woman is ‘ghosted’, that is when a man disappears from her life and cuts off all contact with her without officially breaking off the relationship and when the intention of the man was to deceive her into indulging in sexual intercourse. 

The prosecution must establish that there was no intention to fulfil the promise of marrying. “It would be challenging to prove this. But we do not know how the law is going to be interpreted. It is too early to draw conclusions,” Nahar says. 

However, he believes that it is not a major overhaul of the previous law — IPC Section 375 — which defines rape as “sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped, or is of unsound mental health and in any case if she is under 18 years of age”. Here ‘misrepresentation’ and ‘fraud’ are the key words. “The new law just spells it out more clearly,” he adds. 

Not just for urban India

He elaborates one should keep in mind that laws are made for the entire country, 70 per cent of which is rural. “Casual relationships and flings are not common in most parts of the country. So, I surmise that this could have been the rationale behind this law,” Nahar tells Metrolife. 

The law should leave less scope for abuse of the provision, believes advocate Guru Prasanna. He welcomes the three law organisations’ call for amendments. “The new laws have the potential for unnecessary harassment,” he says, adding, “We should not confuse intention with how the law is worded. The intention may be right, but it does not mean that the legal provisions will not be abused.”