Clause 69 in the Bharatiya Nyaya Sanhita

Note4Students

From UPSC perspective, the following things are important :

Prelims level: Bharatiya Nyaya Sanhita, 2023, CrPc and IPC

Mains level: Bharatiya Nyaya Sanhita, 2023, reforms and concerns

What’s the news?

  • The proposed inclusion of Clause 69 in the Bharatiya Nyaya Sanhita, 2023 has sparked a critical debate about the role of criminal law in regulating intimate relationships.

Central idea

  • The Bharatiya Nyaya Sanhita of 2023 introduces a thought-provoking Clause 69, which seeks to criminalize sexual acts grounded in promises of marriage that are ultimately unfulfilled. While the clause extends its scope to encompass instances of deceit-based sexual interactions, its primary focus is on situations where a promise of marriage serves as the foundation.

Complexities of Consent and Promise of Marriage in Indian Law

  • Historical Precedent: The judiciary has historically categorized sex involving unfulfilled marriage promises as rape under IPC Section 375. Consent is contingent on the promise.
  • Persistent Practice: Despite the 2013 amendments redefining consent under Section 375, courts still rely on IPC Section 90, which includes consent under “fear” or “misconception”.
  • Retrospective Invalidation: Misconception entails using promises to manipulate consent. The breakdown of such promises retrospectively invalidates consent, potentially leading to rape charges.
  • Clause 69’s Distinct Offense: Clause 69 proposes a separate offense distinct from rape. This disregards the need for knowledge on the part of men and women, as well as the requirement of consent.
  • Diminished Role of Consent: Clause 69, regardless of the basis of a woman’s consent, punishes consensual sex if a false marriage promise is established.

What are the concerns?

  • Misuse Concerns: Clause 69 might be misused when parents discover premarital sexual activity, leading to its invocation regardless of the promise’s existence.
  • Potential Impact: While acquittal is possible with the woman’s denial of the promise, arrests and detention during legal proceedings can disrupt lives.
  • Rising Trend of Misuse: A significant portion of rape trials, particularly those initiated by parents or guardians, aims to curb women’s sexual autonomy.
  • Statutory Rape Charges: Parents often report women as minors in elopement cases, leading to statutory rape charges against partners. Subsequent acquittals occur when age is proven.
  • Unintended Rape Charges: Intriguingly, rape charges arise not due to lack of consent, but rather because of consent, highlighting the paradoxical outcomes of certain legal strategies.

Judicial Interpretations

  • Deelip Singh v. State of Bihar, 2004: Recontextualizing Consent Dynamics
  • This case illuminates the nuanced approach courts take when considering consent within the context of a broken promise of marriage.
  • The Supreme Court’s ruling signifies that consent could be contingent on parental approval, adding complexity to the understanding of consent in intimate relationships.
  • Uday v. State of Karnataka, 2003: Socio-Cultural Dimensions of Consent
  • In this case, the court’s perspective sheds light on how societal norms influence the interpretation of consent in promise-to-marry scenarios.
  • The recognition of inter-caste marriage norms illustrates that consent might still exist even when a promise of marriage remains unfulfilled due to societal constraints.

Way forward

  • Comprehensive Consent Education:
    • Implement comprehensive sex education programs to emphasize consent, communication, and respect in relationships.
    • Equip individuals with the necessary knowledge and skills to navigate situations involving consent and promises.
  • Empowering Women’s Agency:
    • Promote initiatives that empower women through education, vocational training, and economic opportunities.
    • Conduct community-driven campaigns to challenge traditional gender norms and advocate for women’s rights.
  • Balanced Legal Reforms:
    • Seek legal reforms that consider the complexities of relationships and ensure justice without undue victimization.
    • Collaborate with legal experts, sociologists, and gender activists to draft legislation respecting individual agency.
  • Support Structures for Victims:
    • Establish comprehensive support mechanisms, including counseling, legal aid, and safe spaces for individuals affected.
    • Aim to minimize the potential harm that legal processes may cause while protecting the rights of victims.
  • A Holistic Perspective on Consent:
    • Foster a societal shift towards affirmative consent in intimate interactions.
    • Launch public awareness campaigns to dispel myths and misconceptions surrounding consent.
  • Promoting Dialogue and Mediation:
    • Encourage alternative dispute resolution methods like mediation and counseling to resolve cases arising from broken promises.
    • Collaborate with community leaders and organizations to facilitate open discussions on relationships and consent.

Conclusion

  • Clause 69 of the Bharatiya Nyaya Sanhita, 2023, necessitates careful reflection on consent, autonomy, and societal norms. Empowerment comes from transcending narrow legal frameworks and cultivating a culture that values individual agency and choices in relationships and decisions.

Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024

Attend Now

Subscribe
Notify of
0 Comments
Inline Feedbacks
View all comments

JOIN THE COMMUNITY

Join us across Social Media platforms.

💥Mentorship New Batch Launch
💥Mentorship New Batch Launch