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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.

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.

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.

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.

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.

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.