Protecting Women from Deceitful Men or Criminalizing Breakups? New Law in India Sparks Debate

By Samra Zulfaqar, CNN

(CNN) — Men who break their marriage vows after having sex with a woman face up to 10 years in prison. The Indian law targets a widespread but often ignored form of sexual abuse.

However, the new law also raises questions about how it will be applied, whether it can effectively protect women from sexual exploitation and whether there is a risk that breaking up a relationship will be made a criminal offence.

Prime Minister Narendra Modi’s government introduced a new penal code in early July, replacing the 164-year-old colonial penal code.

Article 69 of the new law criminalises having sex with a woman by “making a promise to marry her without any intention” to do so, or by “deceptive means” such as falsely promising career advancement or marrying under a false identity.

This crime is punishable by up to 10 years in prison and a fine.

While the law is new, the concept is not: many women have taken similar cases to court before, accusing men of luring them into sexual relations by making promises of marriage.

Indian society generally has a conservative attitude towards sex, with a strong emphasis on female virginity and often expensive dowry negotiations attached to unions. Premarital and extramarital sex therefore remain taboo for many – and any suggestion of impropriety can make it harder for a woman to secure a marriage.

Audrey Dmello, director of Majlis Law, a women’s rights NGO in India, supports the new law. She argues that rape cases involving the promise of marriage are underreported and should be addressed through legislation.

“Having a law like this makes women feel like what happened to them is right,” she told CNN.

Contradictory statements

Under the old Criminal Code, courts previously ruled that sex under false pretenses was not consensual, allowing convictions for rape.

But judges have issued conflicting rulings on cases involving “marriage promises,” something the new law seeks to address.

In 2019, the Supreme Court heard a case in which the plaintiff alleged that he was raped after having a long-term romantic and sexual relationship with the defendant. The defendant later expressed reservations about marrying due to caste differences, as detailed in court documents.

India’s caste system was officially abolished in 1950, but the 2,000-year-old social hierarchy still exists in many aspects of life. The caste system categorizes Hindus at birth, defining their place in society, what jobs they can do, and who they can marry.

The man in the 2019 case was acquitted, with the court ruling that a broken promise was different from a false promise to marry: the man had to have made the promise without intending to keep it from the start. Because the woman continued the relationship, even knowing there were obstacles to marriage, it did not count as rape, the court ruled.

However, that same year, India’s Supreme Court made a different ruling in a similar case, upholding the rape conviction of a doctor in the central state of Chhattisgarh because he had sexual relations with a woman after promising to marry her but then broke his promise and married someone else, according to court documents.

He was sentenced to 10 years in prison and a fine of 50,000 rupees (about $600).

These different rulings show that “even the judges are confused,” said Tanvir Siddiki, a Varanasi-based legal advocate.

“You see (one court) saying one thing and the Supreme Court of India saying something else, precisely on the issue of ‘promise of marriage’,” he added.

Possible concerns

The new law distinguishes between cases involving a “promise to marry” and cases involving rape, but some lawyers say the parameters are still vague.

Some people wonder how the law will be enforced. They say it will be difficult to prove fraud and intention to marry in court.

“How can one prove a person’s intention? In the real world, even if such a situation arises, the accused would only reveal his true intentions to his confidante, he would not tell the victim,” said Gopal Krishna, a legal advocate in Varanasi and legal coordinator for a local women’s NGO, Guria India.

Siddiki added that under the previous penal code, rape victims – including victims in cases involving a “promise of marriage” – were required to undergo medical examinations, which are no longer required under the new category of cases.

“How will the Public Prosecution Service then prove that the victim was sexually exploited?” he said.

In addition, the law has placed the burden of proof on the victim, experts told CNN.

Mixed opinions

Some younger Indians are skeptical about the law’s relevance in today’s increasingly progressive India, where traditions of arranged marriages and historically conservative attitudes toward dating and premarital sex are shifting, especially in more urban and middle-class communities.

“We live in an age where people are becoming more modern and choosing to stay in relationships without wanting to get married,” said Durjoy Biswas, a 21-year-old resident of Kolkata in the state of West Bengal.

And 19-year-old Vanshika Bhattad from Delhi wondered what role the law should play when it comes to sex between two consenting adults.

“Even if the man lies about the marriage, having sexual intercourse is the consent of both parties, the emphasis should be on consent. If someone has forced sex with a girl, then it is rape,” he said.

While many social media users expressed fears about the potential abuse of Article 69 against men, Majlis Law’s Dmello argued that the law empowers women and places them on an equal footing with men.

“In our society, we always tell women to do this and that — don’t go out at night, don’t wear clothes like that,” she said. “The tables have turned now.”