The Curious Difference Between IPC and BNS on Rape

Since the definition of rape in IPC and BNS remains largely the same, it is not clear how such an offender can still escape the charge in such cases. One can interpret the intention of the legislature as carving out a slightly different type of offence, which yields a lighter punishment. This is because of the settled law that where there is a clear conflict between two independent provisions, albeit in the same Act, the special provision must prevail (JK Cotton Spinning & Weaving Mills vs. Uttar Pradesh1961).

The next issue is the scope of misuse of the provision. The phrase “by making a promise to marry a woman without any intention of fulfilling it, has sexual intercourse with her” should be interpreted in the same manner as the courts have used to interpret consent obtained by mistake, though the word ‘consent’ does not appear in Section 69. So what would have to be examined is whether the accused who made the promise had the intention to fulfill it at the time of having sexual intercourse and making the promise. The evidence of such intention would be unraveled by the conduct and action of the accused. In cases where false promises of employment or promotion are alleged, it is even more difficult to prove the allegation to secure conviction, but easy to register an FIR against. ‘Absence of consent’ is an essential ingredient for rape. And it is for the prosecution to establish that there is no consent.

The difference between a ‘false promise’ and a ‘breach of promise’ was illustrated in a recent judgment of the Bombay High Court in Pramod Dhanji Purabiya vs MaharashtraThe complainant, a divorcee and mother, knew the accused, who got her a job as a junior artiste in TV serials and thereafter built up the relationship with promises of marriage and taking care of her young son. When the woman became pregnant, the accused refused to marry her and asked her to terminate the pregnancy. When the woman refused and gave birth to the child, the accused denied paternity. On a plea by the accused to quash an FIR registered against him, the court observed that he had no intention of fulfilling his promise from the beginning. It was also observed that the mere fact of renting a property for the victim did not show any intention of marriage. The victim’s belief that the accused would marry him was spoiled by a ‘misconception of facts’.

Courts analyze the facts to see if there is a violation or not before deciding whether to declare it null and void. The Supreme Court has also reviewed facts relating to the false promise of marriage on several occasions, including one in July of this year in Shiv Pratap Singh Rana vs Madhya Pradeshwhere the Supreme Court quashed the High Court’s decision to uphold the charges of rape and criminal intimidation after noting inconsistencies in the complainant’s statements to the police and the court.

It is also possible that a person, knowing that the party who made a promise had no intention of fulfilling it, continues in a relationship and later files a complaint to force the person to marry or give a job. In cases where a false promise is alleged, it is difficult to prove the charge in court but easy to register an FIR.

The absence of the word ‘consent’ gives a wrong impression. Someone who has sexual intercourse by fraudulent means would obviously do so without consent. Therefore, even if the word ‘consent’ is absent from Article 69, it cannot be said that it is irrelevant. Otherwise, it would lead to a completely absurd interpretation and increase the scope for abuse.

Ideally, this cannot be gender-specific either: a woman can cheat on a man just as well as the other way around. However, the language used seems to bring only men within the reach of Section 69.

Convictions under this provision have yet to be seen, and it will be a long time before there is an authoritative interpretation. In the meantime, it is a valuable tool for those who sincerely ask for help.

Atul N Menon

Advocate, Supreme Court of India

(Views are personal)