Is breaking up with your partner a crime now? What does India’s new law say?

It is not just heartbreak that will come with a fall-out in a romantic relationship. India’s new criminal laws have a provision that could land a man in jail if he breaks up with his partner after promising to marry her without any intention to do so.

This has been introduced in Section 69 of the Bharatiya Nyaya Sanhita (BNS), which replaced the colonial-era Indian Penal Code (IPC), 1860. The clause has raised alarm, with its opponents flagging concerns about its misuse.

What does it say? Why is Section 69 of the BNS controversial? We will explain.

Section 69 of the BNS

The clause is part of Chapter V of the BNS Act which defines “offences against woman and child”.

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Section 69 states, “Whoever, by deceitful means or by making promise to marry to a woman without any intention of fulfilling the same, 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.”

The explanation of this provision says “deceitful means” includes “inducement for, or false promise of employment or promotion, or marrying by suppressing identity.”

The IPC did not have a specific provision that penalised sexual intercourse by employing “deceitful means”.

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Section 90 of the IPC dealt with such cases where consent obtained through a “misconception of fact” is deemed invalid. The accused could then be charged with Section 375 of the IPC, which defined rape.

Why is it controversial?

Critics say the provision in the BNS might criminalise consensual relationships in some cases.

Picture this: A woman can lodge a case against her heterosexual partner if their relationship sours and does not end in marriage.

Section 69 not only feeds into the “misogynistic” narrative of “protecting” women but also endorses “chastity of women” as a “virtue” legally, Dr Sandhya Ram, an Associate Professor at VM Salgaocar College of Law, Goa, wrote for LiveLaw.

“Therefore, it is “in her (chastity’s) interest” that the otherwise consensual sexual intercourse transforms to the offence of rape when there is no resultant marriage, and the promise to marry is proved to have been made without any intention of fulfilling the same,” she said in her piece.

Dr Ram also objected to the “deceitful means” explanation, arguing that the law presumes that women consent to sex in return for employment or promotion.

Men can be imprisoned if they break the “promise to marry” and the same is proved in courts. Experts told India Today that a man might be “arrested just on the word of the woman” and after the police conduct an initial probe.

Critics say the BNS provision, which punishes men for “marrying by suppressing identity”, will give a boost to the “ love jihad ” narrative.

Far-right Hindutva groups have a conspiracy theory of “love jihad ” that claims Muslim men lure Hindu women into romantic relationships under “false pretences” to convert them to Islam.

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Legal conundrum

The big question is how the courts will establish the “intent to marry” and prove a “false promise” and distinguish it from a breach of promise.

“The intent [to marry] is subjective. How one can prove that there was genuine intent if the marriage does not take place is not clear yet,” Ghaziabad-based lawyer Arvind Singh told India Today.

“Relationships can end for several reasons, even when there is an intent to marry. Proving somebody intended to marry but could not for whatever reason will be difficult,” he added.

A senior police officer said that messages, call recordings and pictures could be used as evidence. “Messages, calls and pictures will be taken into account here. They will set the premise for the relationship and if marriage has been discussed. Even then, we might not know if a sexual relationship was established only under the promise that a marriage would take place,” India Today quoted the officer as saying.

There are a lot of grey areas that come with Section 69. For adults in a consenting relationship, the provision raises more questions than it answers. It might create unnecessary panic among couples, who may wonder what will happen if they part ways.

With inputs from agencies