Love, Lies, and the Law: The Quandary of Criminalising False Promise to Marry in India

by | Apr 15, 2024

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About Mihika Poddar

Mihika is a DPhil candidate in law at the University of Oxford, working on legal recognition of personal identities, including race, sex/gender and caste. Mihika competed the MPhil in Law in 2021, and obtained the Bachelor of Civil Law (BCL) with Distinction on a Rhodes Scholarship. Mihika is also a qualified Indian lawyer. Her interests include human rights, equality, climate change and constitutional law.

Indian law is notorious for censuring sexuality outside of marriage, especially for women. A pertinent example is the criminalisation of a ‘false promise to marry’ (FPM) as rape, which recent law reforms will now treat as a separate sexual offence. While this invokes a bigger debate on criminalisation of deceptive sex, such treatment of marriage-related deception raises particular problems. 

This offence was initially created judicially, reasoning that consent to sexual intercourse given under a misconception of fact (a false promise of marriage in future) is invalid, and therefore amounts to rape. This has been criticised as extending the definition of rape too far and prohibiting socially sanctioned sex outside of marriage. In practice, courts have also been seen to use this as a tool to promote a heteronormative, intra-caste, intracommunal construction of marriage. In adjudicating FPM cases, courts have considered two factors – first, whether the woman’s consent was based on the FPM; and second, whether the promise was merely one which could not be fulfilled (i.e. not rape) or was false to begin with. Aside from evidentiary challenges surrounding establishing intent, the jurisprudence on FPM suffers from several problems. 

Responding to some of these, as part of its criminal law reforms, the government introduced The Bharatiya Nyaya (Second) Sanhita, 2023 (BNS) to replace the Indian Penal Code (IPC), which introduces a separate sexual offence relating to sexual intercourse by employing deceitful means (s 69). Among other things, this explicitly recognises FPM cases as a separate offence. While some problems with the FPM jurisprudence have been addressed by the reforms, others remain.

First, the FPM jurisprudence was inconsistent with statutory interpretation, which requires plain reading of unambiguous provisions, strict reading of penal provisions, and that general provisions not override subject-specific provisions. The IPC’s rape provision (s 375) was complete, defining consent as the lack of voluntary agreement, and listing six exhaustive situations that amount to rape, including some deceptive situations. Courts expanded the list by relying on the general consent provision (s 90), wherein ‘a misconception of fact’ invalidates consent. While this could arguably still be read into ‘voluntariness’, the recent legal reform introducing an explicit provision makes this point mute.

Second, holding FPM cases as amounting to rape violate the principle of fair labelling, requiring the description of an offence to match the wrong. Expanding the legal definition of rape beyond its common understanding, such reasoning fails to distinguish between the wrongfulness of ‘deception’ and ‘coercion’. Although both hinder sexual autonomy, they are qualitatively different. Moreover, while some forms of deception might go to the heart of consent – such as identity fraud (one of the scenarios s 375 of IPC considered rape is deceiving the woman into believing the offender is their husband) – FPM cases are arguably not comparable. The feminist movement has also criticised this approach as diluting the provision’s meaning and impact. 

Recognising some of these issues, courts had increasingly started using the offence of cheating to classify such offences instead of rape. This is not a perfect solution, as cheating (s 415) falls under ‘property offences’, reminiscent of ‘propertification’ of women’s bodies. Some judges had also requested legislative intervention, raising concerns about the characterisation of the offence as rape. In response, the legislature seems to have introduced a new offence relating to deceptive sex, doing away with the need to use the law on cheating. While this addresses the labelling issue, it still raises  normative problems of criminalising FPM as a sexual offence.

On one hand, one can sympathise with the woman who has been deceived into having intercourse, and there are good reasons to criminalise deceptive sex. If the purpose of law relating to sexual offences is preserving sexual autonomy and not just self-possession, engaging in deceptive sex, as Rubenfeld argues, (although exclusively in the context of rape) should be criminalised. Fraud is fatal to consent, not just force. Criminalisation of deceit in FPM cases can be said to recognise the locational experiences of women, where pre-marital sexual relations can have serious sociocultural ramifications, and consent may hinge on a promise of marriage. Caste and class realities also make this an intersectional problem, increasing the likelihood of such exploitation for vulnerable groups.

On the other hand, FPM cases raise particular challenges by tethering women’s sexual agency to marriage. Labelling FPM cases in particular as sexual offences, as Menon argues, holds sex as legitimate only within the framework of marriage. This is evident in a system where marital rape is not criminalised, courts deem couples engaging in premarital sex to be married, and describe all sex outside of marriage as immoral. Notably, courts have excluded married women from being capable of falling for a FPM, not factoring divorce or re-marriage as realistic possibilities. This creates an implicit assumption in the law of consent being embedded within marriage, undoing feminist struggles to free one from the other. The law consequently ends up reifying social norms on honour, patriarchal controls on young women’s sexuality, and stigma around premarital sex.

The debate highlights the complexities of navigating legal frameworks in a society where traditional norms intersect with evolving concepts of autonomy and gender equality. Ultimately, the question persists: should sexual consent be contingent upon a promise to marry? And does the law warrant recognising the correlation between promises of marriage and sexual consent as legitimate grounds for criminal prosecution?

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