Does the new IPC Bill criminalise ‘love jihad’?

The Bharatiya Nyaya Sanhita (BNS) Bill, 2023, which will replace the Indian Penal Code (IPC) of 1860, has a provision for prosecuting those who marry a woman by “deceitful means”. This specific provision on “marrying after suppressing identity” is being seen by some as targeting interfaith marriages which take place under false identities.

While introducing the BNS Bill in Lok Sabha on Friday (11 August), Union home minister Amit Shah said the proposed laws stringently deal with matters related to crimes against women.

“Crime against women and many social problems faced by them have been addressed in this Bill. For the first time, intercourse with women under the false promise of marriage, employment, promotion and false identity will amount to a crime,” he said, as per news agency PTI.

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What does Section 69 of the BNS Bill say about sex under false pretence of marriage or via deceitful means? Let’s take a closer look.

Punishment for sex using ‘deceitful means’

Under the proposed legislation, sex by employing “deceitful means” or false promises of marriage can attract up to 10 years of jail term.

Section 69 of the new Bill states: “Whoever, by deceitful means or making by promise to marry to 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.”

“Deceitful means” will consist of the “false promise of employment or promotion, inducement or marriage after suppressing identity”.

According to LiveLaw, IPC did not have a specific clause for matters related to sexual intercourse based on a false promise of marriage. Such cases were usually dealt with via Section 90 of the IPC, which deems consent obtained through “misconception of fact” invalid.

The accused could then be prosecuted under Section 375 which pertains to the offence of rape, noted LiveLaw.

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Legal expert speaks

Speaking to PTI, senior criminal lawyer Shilpi Jain said that this provision was much-needed as such cases were open to interpretation earlier. “Women are being exploited in our country by men who have sex with them after promising them marriage and it’s an offence if men at the time of making the promise had no intention to marry,” she said.

On some considering the specific provision about “marrying after suppressing identity” as a target on interfaith marriages, Jain said that would be “open to interpretation”. 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.

The senior lawyer, however, objected to bringing false promises of employment or promotion in this provision.

“Promise to marry cannot be equated with promise of employment/ promotion because promise of marriage is based on love, trust, while promise of employment/ promotion are benefits which women are accepting in return for sex. It’s a relationship of mutual benefit.”

Jain told PTI that when a woman is aware that she is getting into a sexual relationship “for employment or promotion, then it is not under deceitful or false promise”.

Other crimes

The BNS Bill does not have a provision for adultery. This comes as the Supreme Court struck down the colonial-era Section 497 of the IPC, which criminalised adultery, in 2018.

Rape is defined under Section 63 of the proposed BNS Bill.

Exception 2 to Section 63 of the Bill 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.”

The offence of rape of a minor could lead to the death penalty under the new Bill. “Where a woman under eighteen years of age is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and with fine, or with death”.

The Centre has proposed a punishment of 20 years or life imprisonment for gang rape.

The new Bill says, “Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person’s natural life, and with fine.”

With inputs from agencies