Why criminalising ‘sexual intercourse with promise of marriage’ is a misstep

The recent approval of the draft amendment to the Women and Children Repression Prevention Act, which criminalises illicit sexual intercourse under the promise of marriage with a maximum punishment of seven years, raises significant legal and ethical concerns.

While the law appears to be designed to protect women from deception, it risks creating a host of unintended consequences — legal ambiguities, wrongful convictions and an undue intrusion into private affairs.

Blurring the lines between deception and consent

At the core of this amendment is the assumption that a broken promise of marriage is equivalent to criminal fraud. 

However, relationships are inherently unpredictable, and many engagements or romantic commitments end for legitimate reasons — changing circumstances, incompatibility or mutual agreement. Criminalising failed relationships opens the door to selective prosecution, making the judicial system a mediator of romantic disputes rather than a guardian of justice.

The law, if enacted, will provide an easy mechanism for personal retaliation. Failed relationships often end in emotional distress, and this law could be misused by individuals seeking revenge, financial settlements or coercion. A former partner could file a complaint out of spite, forcing the accused to endure a lengthy and costly legal battle, even if there was no actual deception.

Unlike clear-cut cases of sexual violence, these cases hinge on subjective interpretations of intent. 

How does a court determine whether an individual truly intended to marry at the time of intercourse? Should personal text messages, private conversations or witness testimonies from friends and family serve as legal evidence? Such grey areas make prosecution highly uncertain, increasing the likelihood of arbitrary or biased legal outcomes.

Legal ambiguities: An unworkable standard of proof

A fundamental principle of criminal law is that guilt must be proven beyond a reasonable doubt. However, proving that a person never had the intent to marry at the time of intercourse is nearly impossible. 

The prosecution would need to establish that a clear promise of marriage was made; that the promise was insincere or fraudulent at the time; and that the promise directly influenced the act of intercourse.

The challenge lies in distinguishing between a genuine change of heart and an intentional act of deception. People enter relationships with good intentions, but circumstances change. 

Moreover, these cases may rely on the testimony of the alleged victim alone, creating a situation where convictions could be based solely on one person's word against another's. 

In the absence of physical evidence, how can justice be fairly administered? This could lead to wrongful convictions, where individuals may be punished based on circumstantial or unprovable claims.

Weaponising the law: A tool for personal vendettas

The law, if enacted, will provide an easy mechanism for personal retaliation. Failed relationships often end in emotional distress, and this law could be misused by individuals seeking revenge, financial settlements or coercion. A former partner could file a complaint out of spite, forcing the accused to endure a lengthy and costly legal battle, even if there was no actual deception.

Furthermore, such laws disproportionately affect men, as they create a presumption of guilt in cases where there is little tangible evidence. This raises concerns about the fairness of legal proceedings and the potential for the law to be exploited for ulterior motives, including blackmail and extortion.

Intrusion into private affairs: Policing personal relationships

This amendment sets a dangerous precedent by allowing the state to interfere in consensual relationships. It risks transforming private interactions between adults into matters of criminal law, shifting the focus from consent to morality-based governance. 

In a modern, rights-based legal framework, the state should not have the authority to police adult relationships unless coercion or violence is involved.

The implications of such legal overreach extend beyond individual cases. It could lead to an atmosphere of fear and hesitation in relationships, where individuals become wary of expressing romantic intent due to the potential legal repercussions.

Judicial overload: A flood of unprovable cases

Bangladesh's judicial system is already overburdened, with thousands of unresolved cases pending in courts. By adding another vaguely defined criminal offence, this law could flood the system with cases that are inherently difficult to prove, diverting attention from more urgent matters such as rape, domestic violence, and trafficking.

Courts should be focused on prosecuting clear cases of violence and coercion, not getting entangled in assessing the sincerity of past romantic commitments. This law risks turning judges into arbiters of personal relationships rather than defenders of justice.

Misplaced legal priorities

Bangladesh faces urgent gender-related issues, including domestic violence, workplace harassment, forced marriage, and trafficking. Instead of strengthening legal frameworks to address these pressing problems, the government is prioritising a law that is not practical.

Existing laws already cover cases where coercion, fraud, or force is used to obtain sexual consent. If a person is forced, tricked, or manipulated into intercourse under threats or intimidation, those crimes should be prosecuted under established statutes. 

Creating a separate offence based on broken promises of marriage serves little legal purpose beyond complicating personal relationships.

What is needed

The proposed amendment to criminalise 'illicit sexual intercourse with the promise of marriage' is a deeply flawed legal proposal. It introduces legal ambiguities that are difficult—if not impossible — to fairly adjudicate, opens the door to wrongful convictions and malicious prosecutions, and represents an overreach of state power into private affairs.

Instead of criminalising personal relationships, Bangladesh should invest in legal reforms that truly empower and protect women. 

Justice should be rooted in fairness, clarity and practicality — not in laws that seek to police romantic commitments.

Clarification: Not an endorsement of sex outside marriage

Opposing this amendment does not mean endorsing sex outside marriage. Many, including myself, believe such relationships should align with moral, religious and social values. 

However, the legal system exists to ensure justice, not enforce personal morality. The key issue is whether criminal law should regulate private, consensual relationships without causing severe injustices.

Sketch: TBS

Makshudul Alom Mokul Mondal is a public policy and advocacy specialist with over a decade of experience.

Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions and views of The Business Standard