IS THE SECTION 69 OF THE BNS IRONICALLY MISOGYNISTIC?

The parliament repealed the Indian Penal Code with Bharatiya Nyaya Sanhita, 2023 (BNS) which came to effect on 1st July, 2024.  Chapter V of the new criminal law bears the heading 'Of Offence against Woman and Child' and under this chapter one of the newly added offence, Section 69 of the BNS falls in this segment with the marginal note 'Sexual intercourse by employing deceitful means, etc.' and states thus:

Sexual intercourse by employing deceitful means, etc: Whoever by deceitful means or by making promise to marry a woman without any intention of fulfilling the same, and 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.
Explanation – “deceitful means” shall include the false promise of employment or promotion, inducement or marrying after suppressing identity.

WHAT MAKES THIS PROVISION MISOGYNISTIC EVEN THOUGH ITS BARE READING INDICATES ITS PROTECTION OF WOMEN.

Patriarchy can be traced to its roots in the History of Indian society and gradually overtime matriarchy has found its stand and longs to be treated as an equal. The feminist ideology is a wide ideology that supports women to shatter through the patriarchal stigma and encourages women empowerment, autonomy and equality, but the law is contrary to what this ideology instils, at least to a few to some extent.

This provision is prejudicial to gender equality, it subdues the women gender lesser to that of a man as it depicts that only a man is capable of initiating sexual intercourse by deceitful means vis-a-vis on the false pretext to marry and not the other way around. This provision implies and indicates that women are incapable of initiating sexual intercourse against a man by deceitful means or false pretext to marry and hence pictures women as the oppressed gender and further delineates women as a mere object that can be conditionally used. This provision has also been deemed discriminatory by many for its misogynistic approach.

Why Has This Section Sparked a Controversy.

Feminism is Equality and this provision gives only men the unusual upper-hand, the power to deceit to enter into marriage on the pretext of have sexual intercourse and this idea of only men being capable of this unfortunate act has stirred the Feminists for the the provisions discriminatory intent.

On this note, A Public interest litigation has also been filed before the Kerala High Court in Vimal Vijay v Union of India and Another. The PIL challenging the constitutionality of section 69 stated :

"It cannot be explained as to what backwardness the legislature intends to remedy or what specific purpose it intends to achieve by making such classification. There is no reason to presuppose that only men are capable of such deceit. Furthermore, women are also capable of proposing marriage to a man,"

SECTION 69 BLURS THE MEANING OF 'CONSENT'

Other lacuna in the said provision is that the word ‘Consent’ has not been given much clarity making it difficult to differentiate between a genuine and fraudulent intentions.

False pretext to marriage under the old penal code(IPC) under Section 375, read along with Section 90 of the IPC had very precise meaning, The apex court has also as rightly opined in Pramod Suryabhan Pawar vs The State Of Maharashtra that ‘the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman’s decision to engage in the sexual act.’

Similarly, with respect to couples in a live-in relationship, the apex court has held that living together is a right to life. Live-in-relationship may be immoral in the eyes of the conservative Indian Society but it is not illegal in the eye of law. Sec 2 (f) of The Protection of Women from Domestic Violence Act, 2005 also describes “domestic relationship” as a relationship between two persons who live or have, at any point of time, lived together in a shared household.

On the contrary, Section 69 of the new act totally does not give much legal meaning to consent and puts makes men liable in the slightest of deceit.

SEC 69 BNS IS NOT APPLICABLE TO TRANSGENDERS.

More lacuna has been found in this provision of the new criminal law as it only relates to a man and a women and not to a third gender  Transgenders have been constitutionally recognized as third gender in NALSA vs. UOI  (2014) 5 SCC 438. but the provision enacted in the new criminal law fails to protect Transgenders from false promise to marriage even though transgenders have been defined under the said act.

Recently, The High Court of Himachal Pradesh in Bhupesh Thakur Vs State of Himachal Pradesh 2024:HHC:7806 has clarified that Transgender Persons Cannot Invoke Section 69 Of BNS In False Promise Of Marriage Cases.

Is the Sec 69 BNS discriminatory against women and transgenders?

is it misogynistic as it fails to view women equal in the social stigma and do the feminists accept this prejudicial provision that casts a glass cover over the women gender leaving them powerless by suppressing their identity. Was the legislative intent good as it aimed to the protect the affairs of women?

The real irony lies in the section 69 of the new act itself. and the interpretation is left open for the readers, feminists or not, to decide.