Courtesy: Harsh Vardhan
Section 69 of the Bhartiya Nyaya Sanhita 2023 criminalizes sexual intercourse upon consent obtained through deceitful means or false promise of marriage. Section 69 reads as follows:
“69. Whoever, by deceitful means or by making promise to marry to a woman without any intention of fulfilling the same, 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.
Explanation: “deceitful means” shall include inducement for, or false promise of employment or promotion, or marrying by suppressing identity.”
Since the new legislation consolidates all the offences against women in a single chapter, Section 69, being a part of the same chapter, is distinguished from the offence of Rape for which punishment is provided under Section 64 of the BNS.
The ingredients of the offence under Section 69 of the Bhartiya Nyaya Sanhita 2023 are as follows:
- Sexual Intercourse with the woman is committed
- Such intercourse must be committed by deceitful means or by making a promise to marry without intention of fulfilling the same
To prove that the offence is committed, both the ingredients must be proved.
If the First Information Report is registered, what are the remedies for the accused person?
First Information may be registered under Section 173 of the Bhartiya Nagarik Suraksha Sanhita, 2023, against the accused person for commission of offence under Section 69 of the Bhartiya Nyaya Sanhita 2023. One can challenge the First Information Report before the Hon’ble Allahabad High Court by means of a Criminal Misc. Writ Petition under Article 226 of the Constitution of India praying for quashment of the First Information Report, along with interim prayers for stay on the investigation, and stay on arrest of the aggrieved accused person during the pendency of the investigation.
Apart from the challenge to the First Information Report, one may also seek remedies for anticipatory bail under Section 482 of the Bhartiya Nagarik Suraksha Sanhita 2023, before the Sessions Court, and if rejected by the Sessions Court, then before the Hon’ble Allahabad High Court. The law regarding Anticipatory Bail is succinctly laid down by the Hon’ble Supreme Court in the landmark judgment of Sushila Aggarwal and others vs. State (NCT of Delhi) and another [(2020) 5 SCC 1].
After the investigation, if a positive report is submitted before the concerned magistrate, the magistrate may take cognizance of the offence upon the submission of chargesheet, and issue summons to the accused person to face trial. In such a case, one has two remedies available. The first remedy is to file an application before the Hon’ble Allahabad High Court under Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023, challenging the entire criminal case including the summoning order and the chargesheet. The other option is to appear before the Trial Court pursuant to the summons on the date fixed, and subsequently, face trial. As the stage of the trial progresses from summons to charges, one may file a discharge application before the Trial Court praying for discharge. If the same is rejected, one may file Criminal Revision before the Hon’ble Allahabad High Court under Section 438 of the Bhartiya Nagarik Suraksha Sanhita, 2023, challenging the order rejecting the discharge application.
What are the remedies available if the offence under Section 69 of the Bhartiya Nyaya Sanhita is alleged against a teenager?
In case of a person of teenage, upon registration of a First Information Report, the accused person must be dealt with as a juvenile, and the procedure prescribed must be followed as per the Juvenile Justice (Care and Protection) Act, 2015. Since teenage romantic relationships are on the rise in Indian Society where the culture is predominantly orthodox, conflicts are bound to occur, and young teenage boys are prone to proceedings not only under Section 69 of the Bhartiya Nyaya Sanhita, but also under the Protection of Children from Sexual Offences Act, 2012.
Remedies available are to pursue the writ jurisdiction for quashing of the First Information Report, as in a plethora of judgments, the Hon’ble Supreme Court and various High Courts have pointed out that romantic relationships between consenting teenagers must be protected from prosecution under the law.
What are the grounds available for accused persons who entered into a consenting relationship and had consensual sexual intercourse but a criminal case is registered claiming false promise to marry?
Not every sexual intercourse on the premise of a promise of marriage and afterwards denied its outcome, comes under the ambit of crime. There is a difference between “breach of promise” and “false promise”. The Hon’ble Supreme Court in the case of Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608 drew the difference between the two and held as follows:
“… On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The “consent” of a woman under Section 375 is vitiated on the ground of a “misconception of fact” where such misconception was the basis for her choosing to engage in the said act.”
This case became the golden rule to decide as to when, vis-a-vis a promise, there is a mere “breach” or when it is “false”. This principle was based on the earlier cases of Deepak Gulati v. State of Haryana (2013) 7 SCC 675 and Uday v. State of Karnataka (2003) 4 SCC 46, in which the Supreme Court stated that failure in a relationship and subsequent inability to marry cannot amount to a criminal offence. The deciding factor in every case is whether the accused possessed dishonest intention from the inception.
The Supreme Court has consistently reaffirmed this principle in various cases. In the case of Mahesh Damu Khare v. The State of Maharashtra & Anr. 2024 SCC OnLine SC 347, the Hon’ble Supreme Court has raised concern about the growing trend of prolonged relationships being criminalized after they turn sour.
The Hon’ble Allahabad High Court, while considering the quashment of criminal proceedings of sexual intercourse on false promise of marriage, must consider and weigh the following factors:
- Whether there was a pre-marital relationship between the parties, and if there was, the length of the relationship between the parties, and if the same is a long-drawn relationship, it will weigh in positively for the accused
- The circumstance of their living together and cohabiting with each other, for eg. whether they were living in a separate accommodation, or not etc.
- Whether it seems to be a case of a consensual relationship turning sour or partners becoming distant, and is given criminal colour only to harass
- Age of the Accused person and the age of the alleged victim
- medical evidence, if any, as the medical evidence holds importance when other allegations regarding violence are made.
- Other facts and circumstances, unique to each case.
What are the grounds that one can press for quashment of proceedings under Section 69 of the Bhartiya Nyaya Sanhita?
- Mere breach of promise vs deception: When the evidence shows that there was a genuine consensual relationship and subsequently it fell apart, rather than a calculated deception. A subsequent failure to marry without evidence does not attract criminal liability. The Supreme Court in the case of Pramod Suryabhan Pawar v. State of Maharashtra (supra) held that “The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman’s decision to engage in the sexual act.”
- No dishonest intent from inception: When the chargesheet or the FIR fails to outline that the accused was fraudulent in his act to obtain sexual favours, the court intervenes at the pre-trial stage. The court in the case of Samadhan s/o Sitaram Manmothe vs. State of Maharashtra & Ors. 2025 INSC 1351, held that “To convert every sour relationship into an offence of rape not only trivialises the seriousness of the offence but also inflicts upon the accused indelible stigma and grave injustice. Such instances transcend the realm of mere personal discord. The misuse of the criminal justice machinery in this regard is a matter of profound concern and calls for condemnation.”
- Consent of the parties involved: If the parties living together are already aware of each other’s circumstances (e.g., already married), it may be a ground for quashing the proceedings. The Supreme Court in the case of Pramod Kumar Navratna v. State of Chhattisgarh & Ors., 2026 INSC 124, quashed the proceedings where the marriage was impossible because of the party being already married. The court held that “…both parties were aware about the marital status of the victim and therefore it cannot be, by any stretch imagination said that the consent of the complainant-respondent No.3 has been vitiated or obtained on fraud and misrepresentation made by the accused-appellant.”
Hence, the endeavour of the Courts is to demarcate genuine cases that deserve prosecution of the accused must be clearly demarcated from the litigation that arises from the cases of consensual relationships between consenting adults going acrimonious on account of dispute and disagreement or a future change of mind.