Sex On False Promise Of Marriage, Adultery, Section 377 : Some Changes Proposed In New IPC Bill

The Union Government today introduced three bills in the Lok Sabha aimed at replacing the core legal framework governing India's criminal justice system. The bills, introduced for consideration, seek to repeal and replace the Indian Penal Code (IPC), the Criminal Procedure Code (CrPC), and the Indian Evidence Act (IEA).

One of the changes is found in Section 69 of the Bharatiya Nyaya Sanhita(which seeks to replace IPC), which pertains to sexual intercourse under the false pretext of marriage or deceitful means. The section reads: "Whoever, by deceitful means or making a 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 offense of rape, shall be punished with imprisonment for a term which may extend to ten years and shall also be liable to a fine."

While IPC has no specific or explicit clause dealing with sexual intercourse based on a false promise of marriage, such instances are typically covered under Section 90 of the IPC, where consent obtained through a 'misconception of fact' is deemed invalid. In these cases, the accused can be charged under Section 375, which addresses the offence of rape.

The notable aspect of Section 69 under the new bill is its explanation that defines "deceitful means" as including false promises of employment or promotion, inducement, or marrying after concealing one's true identity. It is pertinent to note that the existing legal framework under the IPC does not explicitly include false promises of employment or promotion, inducement, or marrying after concealing one's true identity under the definition of "deceitful means".

The new bill also omits the provision for adultery. It may be noted that in 2018, the Supreme Court had struck down the 158 year old Section 497 of the IPC, which criminalized adultery, as unconstitutional. However, there is a provision for 'enticing or taking away married women'.

Section 83 reads as : "Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man,with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both".

Additionally, another omission is that of Section 377 of IPC. On September 6th 2018, the Supreme Court had unanimously struck down Section 377 of IPC, to the extent that it criminalised same-sex relations between consenting adults. However, non-consensual acts against men which amounted to "unnatural sex" under Section 377 are still criminalised under IP.  The Bill does not have a mirroring provision.

Notably, the provision legalising marital rape has been retained in the new bill. Exception 2 to Section 63 of the Bill (which defines the offence of rape) states–

"Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape."

A batch of pleas challenging the constitutional validity of Exception 2 to Section 375 of the IPC, which provides exception to non-consensual matrimonial sex from the offence of rape, is currently pending before the Supreme Court. The batch of petitions before the court includes four kinds of matters– first is the appeal against the Delhi High Court split verdict on the marital rape exception; second are PILs filed against the marital rape exception; third is the plea challenging the Karnataka High Court judgment which sustained the charges framed against a husband under Section 376 IPC for forcible sex with wife; and the fourth are intervening applications.