Introduction
The Bharatiya Nyaya Sanhita 2023 has fundamentally restructured how Indian law treats sexual intercourse obtained through deception. Under the IPC, Section 375 classified such acts as rape, punishable with ten years to life imprisonment under Section 376. The BNS separates this into Section 69 as “sexual intercourse by deceitful means,” explicitly stating it does not amount to rape, with maximum punishment of only ten years. This raises a contentious question: should Section 69 be gender-neutral, especially since women also make and break marriage promises?
The Legislative Change: From Rape to Lesser Offense
Section 375 IPC treated consent obtained through deception—false marriage promises, hidden identity, or fraudulent inducement—as rape. The law recognized that deception vitiates consent entirely. If a woman consented only because she believed marriage would follow, that consent was legally invalid. Section 69 BNS fundamentally alters this framework. It creates a separate offense for intercourse through “deceitful means or promise to marry without intention of fulfilling the same.” The provision explicitly states such intercourse does not amount to rape. The accused avoids the devastating social stigma of being labeled a rapist, and faces significantly reduced punishment.
The Equality Argument for Gender Neutrality
Article 14 guarantees equality before law. Critics argue that Section 69 violates this by protecting only women when deception harms both genders equally. Men also suffer when women make false marriage promises, engage in sexual relationships, and later abandon those promises. Modern India witnesses educated, independent women making autonomous relationship choices. Women promise marriage, maintain physical relationships while extracting financial benefits or career assistance, then marry elsewhere. The emotional and financial harm to men finds no legal recognition. The gender-specific formulation creates stark asymmetry. A man faces ten years imprisonment for identical conduct that brings a woman no criminal consequence. This differential treatment based solely on sex appears discriminatory.
Article 15(3): Constitutional Authorization for Special Provisions
However, Article 15(3) of the Constitution explicitly provides: “Nothing in this article shall prevent the State from making any special provision for women and children.”This provision directly answers the equality challenge. The Constitution itself recognizes that formal equality sometimes fails to produce substantive justice. Article 15(3) empowers the State to enact laws specifically protecting women, even when such laws create differential treatment based on sex.
Section 69 falls squarely within this constitutional authorization. It is a special provision designed to protect women from specific exploitation to which they are disproportionately vulnerable. The gender-specific nature does not violate equality—it implements constitutional vision by addressing substantive inequality through targeted protection.
Article 15(3) does not require proving women need protection in each instance. The constitutional provision itself reflects a determination that women, as a class, face systemic disadvantages warranting special legislative measures. Section 69 is independently authorized by Article 15(3), beyond Article 14 scrutiny.
Why Women’s Vulnerability Justifies Special Protection
The constitutional authorization in Article 15(3) is not arbitrary. It reflects persistent ground realities that distinguish women’s vulnerability from men’s.
When a woman engages in premarital sexual relations based on false marriage promises, she faces consequences men simply do not. Social stigma attached to women’s premarital sexuality persists across Indian communities. A woman’s sexual history affects her marriageability in ways entirely absent for men. Family honor remains tied to female chastity in many communities, making broken promises after sexual relations potentially catastrophic, sometimes triggering ostracism or violence.
Economic vulnerability compounds this. Despite progress, women’s economic independence remains limited. For many women, marriage represents economic security. False promises followed by abandonment destroy both social standing and economic prospects.
Women bear biological consequences of sexual relationships. An abandoned pregnant woman faces immense social, economic, and psychological challenges with no male equivalent. This asymmetry of reproductive consequences creates asymmetry of vulnerability.
Men deceived by false marriage promises experience emotional pain and perhaps financial loss. But they face no social ostracism, do not become unmarriageable, their family honor is not questioned, and they bear no biological consequences. This fundamental difference justifies different legal treatment under Article 15(3).
The Systematic Pattern Section 69 Addresses
Section 69 does not address isolated broken promises. It targets a systematic pattern: men using marriage promises as instruments to obtain sexual access to women, exploiting social norms that restrict women’s sexuality while imposing no comparable restrictions on men.
In a society where women’s sexuality is controlled and stigmatized, marriage promises function as keys unlocking sexual access. Men making false promises exploit gendered social norms. Women who break promises do not exploit comparable systematic vulnerability because men face no social stigma, economic ruin, or family dishonor if women renege.
This asymmetry is structural, rooted in patriarchal control over women’s bodies and sexuality. Article 15(3) exists precisely to address such systematic structural inequalities. Section 69 implements this mandate by protecting those facing systematic vulnerability while declining to extend criminal sanction to situations lacking that systematic exploitation pattern.
Why Men’s Grievances Require Different Remedies
Acknowledging women deserve special protection does not mean men’s grievances are illegitimate. It means criminal law, with its severe consequences, should address systematic patterns of exploitation rooted in structural inequality. Men genuinely deceived by false marriage promises have legitimate grievances better addressed through civil remedies. Suits for damages or compensation provide recourse without expanding criminal liability into intimate relationships’ complex terrain. Criminal law serves specific purposes: deterring conduct threatening social order, punishing serious moral wrongs, protecting the vulnerable from exploitation. Section 69 serves these by targeting systematic gendered exploitation. Extending it to all broken relationship promises would transform criminal law into a tool policing intimate relationships generally, a role it is neither designed nor suited for.
The False Equivalence Problem
Demanding gender neutrality rests on false equivalence: treating situations appearing similar as if identical in substance. A man and woman who both break marriage promises may seem similarly situated, but consequences they face and social structures they navigate are fundamentally different. This ignores power, context, and consequences. Article 15(3) rejects this false equivalence, recognizing that women and men, despite formal equality, occupy different positions within social structures and face different vulnerabilities.
Special provisions for women do not assume weakness. They acknowledge women navigate a society structured by patriarchal norms creating specific vulnerabilities. Section 69 addresses one such vulnerability. Demanding gender neutrality actually undermines equality by ignoring the substantive inequality the provision remedies.
The Practical Dangers of Gender Neutrality
Making Section 69 gender-neutral would create problems while failing to address underlying issues. Gender-neutral provisions in intimate relationships enable mutual recrimination and weaponization of criminal law. If both parties in failed relationships face potential criminal liability for broken promises, the provision becomes harassment tool rather than protection. Couples who mutually promised marriage then mutually decided against it could each file criminal complaints. This absurdity exposes the danger.
Gender neutrality could harm women by diluting protective purpose. If Section 69 becomes another weapon in relationship disputes rather than a shield against systematic exploitation, its effectiveness protecting genuinely vulnerable women diminishes. The chilling effect on legitimate relationship autonomy could be severe. People might hesitate to enter relationships or make commitments for fear any change in intentions triggers criminal liability. This is not criminal law’s purpose, and Article 15(3) provides no constitutional mandate for such extensive criminalization.
Civil Law as the Appropriate Avenue for Men
The appropriate remedy for men deceived in relationships is civil law, not criminal. A strengthened civil cause of action for breach of promise, applicable to both genders, could address legitimate grievances without criminalizing relationship complexity. Civil law handles nuances of changing intentions, evolving circumstances, and mutual disappointments in ways criminal law cannot. Damages, compensation for financial losses, and remedies for emotional distress provide recourse proportionate to harm suffered, without the blunt instrument of criminal prosecution. This approach recognizes both genders may suffer from broken promises while maintaining criminal law’s focus on systematic exploitation patterns that disproportionately harm women due to structural inequality.
Conclusion
Article 15(3) provides clear constitutional authorization for Section 69’s gender-specific formulation. The provision empowers special measures protecting women because women face systematic disadvantages men do not face. Section 69 addresses documented exploitation patterns rooted in patriarchal structures, protects those facing distinctive and severe consequences, and serves legitimate criminal law purposes by deterring serious misconduct and protecting the vulnerable. Demands for gender neutrality, while superficially appealing to equality, misunderstand both constitutional architecture and social reality. The Constitution mandates treatment appropriate to achieving substantive equality, not identical treatment regardless of context.
Men’s legitimate grievances from broken relationship promises deserve remedy through civil law. Expanding criminal liability to cover all broken promises would undermine justice rather than advance it. Until patriarchal structures making such provisions necessary are dismantled, gender-specific protections remain both constitutionally authorized and necessary for achieving real equality.
