Protecting women from deceitful men or criminalizing break-ups? A new law in India stirs debate
But the new law has also provoked questions about how it will be applied, whether it can effectively protect women from sexual exploitation and whether it risks criminalizing break-ups.
Prime Minister Narendra Modi’s government introduced a new criminal code in early July, replacing India’s 164-year-old colonial-era penal code.
Section 69 of the new statute criminalizes having sex with a woman “by making a promise to marry (her) without any intention of” doing so, or by “deceitful means” such as falsely promising career advancement or marrying under a fake identity.
The crime is punishable by up to 10 years’ imprisonment and a fine.
Though the law is new, the concept is not – many women have previously brought such cases to court, accusing men of luring them into sexual relationships by dangling promises of marriage.
Indian society has generally conservative attitudes towards sex, with a strong emphasis on female virginity and often pricy dowry negotiations attached to unions. Premarital and extramarital sex therefore remain taboo for many – and any suggestion of impropriety may make it more difficult for a woman to secure a marriage.
Audrey Dmello, director of Majlis Law, a women’s rights NGO in India, supports the new law. She argues “promise to marry” rape cases are under-reported and needed to be tackled through legislation.
“Having such a law gives women validity as to what happened to them,” she told CNN.
Conflicting rulings
Under the old penal code, courts have previously ruled that having sex under false pretenses is not consensual, giving rise to rape convictions.
But judges have issued conflicting rulings on “promise to marriage” cases, something the new law is trying to address.
In 2019, the Supreme Court heard a case where the plaintiff alleged rape after having been in a long-term romantic and sexual relationship with the defendant, who later expressed reservations about getting married due to caste differences, as detailed in court documents.
India’s caste system was officially abolished in 1950, but the 2,000-year-old social hierarchy still exists in many aspects of life. The caste system categorizes Hindus at birth, defining their place in society, what jobs they can do and who they can marry.
The man in the 2019 case was acquitted, with the court ruling that a broken promise was different to a false promise of marriage: the man had to have made the promise with no intention of fulfilling it from the start. Since the woman continued the relationship even knowing there were obstacles to them getting married, it didn’t count as rape, the court ruled.
However, in the same year India’s top court gave a different ruling in a similar case. It upheld the rape conviction by a doctor in the central state of Chhattisgarh because he had a sexual relationship with a woman after he’d promised to marry her, but then broke his promise and married someone else, according to court documents.
He was sentenced to 10 years’ imprisonment and a fine of 50,000 rupees (about $600).
These different rulings show “even the judges are confused,” said Tanvir Siddiki, a legal advocate based in Varanasi.
“You can see that the (one court) is saying one thing, and the Supreme Court of India is saying another thing on the very issue of ‘promise of marriage,’” he added.
Potential concerns
The new law distinguishes “promise to marry” cases from rape – but some lawyers say the parameters are still vague.
Some have questioned how the law will be implemented, arguing that it will be difficult to prove deceit and the intention to marry in court.
“How can one prove a person’s intention? In the real world, even if such a situation occurs the accused would only tell his true intentions to his confidant, he wouldn’t tell the victim that,” said Gopal Krishna, a legal advocate in Varanasi and a legal coordinator for a local NGO for women, Guria India.
Siddiki added that under the previous penal code, rape victims – including those in “promise to marriage” cases – were required to undergo medical exams, which are no longer required under the new class of case.
“Without this, how will the prosecution then prove that the victim was sexually exploited?” he said.
Moreover, the law has shifted the burden of proof onto the victim, experts told CNN.
Mixed opinions
Some younger Indians have voiced skepticism over the law’s relevance in today’s increasingly progressive India where traditions of arranged marriages and historic conservative attitudes towards dating and pre-marital sex are shifting, especially in more urban and middle-class communities.
“We’re living in a time where people are becoming modern and are choosing to stay in relationships without wanting to get married,” said Durjoy Biswas, a 21-year-old resident of Kolkata in West Bengal state.
And 19-year-old Delhi resident Vanshika Bhattad questioned what role the law should play when it comes to sex among two consenting adults.
“Even if the guy is lying about marriage, having sexual intercourse is the consent of both parties, the emphasis should be on consent. If someone forcefully has sex with a girl then it is rape,” he said.
But while many social media users have voiced fear over the potential abuse of Section 69 against men, Dmello of Majlis Law argued that the law empowers women and places them on equal footing with men.
“In our society, we always tell women to do this and that – do not go out at night, do not wear such clothes,” she said. “The tables have turned now.”
Despite the new law aiming to address conflicting rulings on "promise to marriage" cases, some lawyers express concerns about its implementation, suggesting it will be challenging to prove deceit and intent in court. Moreover, the law shifts the burden of proof onto the victim, raising questions about its fairness.
In the context of India's diverse society, some younger individuals question the law's relevance in today's progressing era, where traditional norms around arranged marriages and conservative attitudes towards pre-marital sex are evolving, particularly in urban and middle-class communities.
