Opinion: Will Proposed Criminal Laws Curb Marriages Through Deceit?

Three bills to replace British-era criminal laws were adopted recently by the Parliamentary Standing Committee on Home Affairs. The Bharatiya Nagarik Suraksha Sanhita Bill, 2023, which seeks to replace the Code of Criminal Procedure, 1973; along with the Bharatiya Nyaya Sanhita Bill (BNS) to replace the Indian Penal Code, 1860, and the Bharatiya Sakshya Adhiniyam Bill to replace the Indian Evidence Act, 1872, were introduced in parliament on August 11 by Union Home Minister Amit Shah. All 10 opposition members in the panel gave a dissenting vote.

There are some new sections in the proposed bills cleared by the MPs' panel, aimed at checking crimes against women. The new bills include a specific provision in which marrying a woman after "suppressing identity" or indulging in sex under the false pretence of marriage could warrant jail as well as a fine. Section 69 of the BNS Bill, 2023 seeks to prosecute those who marry a woman by 'deceitful means'. The phrase "deceitful means" has been defined to include the false promise of employment or promotion, or inducement or 'marrying after suppressing identity'.

In the proposed legislation, the punishment for sex by 'deceitful means' or 'false promises of marriage' is up to 10 years of imprisonment. This is being construed by some as directed towards interfaith marriages, specifically "love jihad" - the term that the right-wing uses for Muslim men seducing Hindu women into converting.

Many feel the clause safeguards girls and women who are sexually exploited on the pretext of marriage or forced to convert. With the new clause, it will be considered an offence if the man had no intention of marrying the woman at the time of making the promise. Earlier, the Indian Penal Code (IPC) did not address sex based on false promise of marriage. Such cases were usually handled under Section 90 of the Indian Penal Code, which deems consent obtained through 'misconception of fact' invalid. The law was open to interpretation and culprits went scot-free, mostly.

Right-wing groups have often raised allegations about 'love jihad' and Muslim men "trapping" Hindu women into romantic relationships with the motive of converting them to bring about a demographic change.

Lalita Malhan, a Delhi-based counsellor who runs an NGO and has worked with the Delhi Commission for Women, claimed several incidents of girls barely 11 or 12 years old lured, sexually exploited and left pregnant. The girls are then cajoled into converting for marriage. "Most of these girls come from poor families and the police never accept their parents' complaints. Even educated girls have been trapped under false identities for marriage and sexually exploited. This new clause will benefit hundreds of vulnerable girls who suffer in silence now," he said.

Several BJP-ruled states have brought in laws against forced conversion, justifying them on the grounds of allegedly increasing, or even rampant, instances of Muslim men deceitfully marrying Hindu women. States like Madhya Pradesh, Uttar Pradesh, Gujarat and Karnataka, have brought in laws to check 'love jihad'. The National Investigation Agency (NIA) also investigated several cases, especially from Kerala. The Kerala cases were flagged by the Catholic Bishops' Council, which alleged that Christian girls were not spared either.

Maharashtra too was considering enacting the law on similar lines. In June 2018, the Jharkhand High Court granted divorce in an alleged 'love jihad' case in which the accused allegedly lied about his religion and forced the victim to convert to Islam after marriage.

Many BJP-ruled states have cracked down on so-called love jihad, relying on a populist move aimed at gaining the support of the party's core voters. The proposed new criminal laws, if passed before the 2024 election, is bound to colour the campaign. The opposition will naturally be critical of any such step.

But legal experts insist there is nothing like 'love jihad', that adult men and women are free to marry and also convert; this is enshrined under the right to freedom of religion. The subject of relationship and marriage are personal and best left to those involved. Criminalising 'a promise to marry' is invasion of people's lives and their fundamental Right to Privacy. Determining whether a promise to marry has been made can be subjective and challenging to prove.

"The present laws allow for the punishment for a person who conceals his identity, gets married and has sex with the woman. There was no need to bring any special thing on this because it is already covered by existing laws," says Colin Gonsalves, senior advocate, Supreme Court.

"A man can falsely represent to a woman that "now you have sex with me because I am in a married life with you" when in fact, he is married to someone else, which is an offence anyway," explains Mr Gonsalves.

While there is no denying the fact that there has been a rise in allegations of inter-faith relationships in which the girl has exposed her husband as someone who lied and trapped her into marriage. It's a reality that the social context is changing in our country. It is imperative to amend laws and even bring in new legislation to cater to the changed society.

The present legal framework tackles "cheating" and "breach of trust" but the new legislation will add more teeth.

(Bharti Mishra Nath is a senior journalist)

Disclaimer: These are the personal opinions of the author