Section 69 of the Bharatiya Nyaya Sanhita is redundant

Section 69 of the Bharatiya Nyaya Sanhita has ostensibly reduced the gravity of cases of sexual intercourse registered on the false promise of marriage by reducing punishment, compared to the offence of rape defined under Section 63 BNS (or Section 375 of the IPC).
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Cases of rape registered on the premise of false promise of marriage have been in the eye of the storm for a long time. It is often alleged that despite the consent of some women to a physical relationship, the men in those relationships are accused of rape. It was expected that the Central government would do away with the provision of the law which undermines the agency of women in giving their free and informed consent before entering into a sexual relationship. Instead, it introduced a new provision in the Bharatiya Nyaya Sanhita (BNS), 2023. Section 69 (presumably) solely addresses cases involving sexual intercourse based on false promise of marriage. This stand-alone offence did not exist in the Indian Penal Code (IPC).

Limitations set by the Court

Section 69 has ostensibly reduced the gravity of cases of sexual intercourse registered on the false promise of marriage by reducing punishment, compared to the offence of rape defined under Section 63 BNS (or Section 375 of the IPC). Before discussing the redundancy of Section 69 BNS, it will be appropriate to see how the Supreme Court has narrowed the scope of such cases by imposing some restrictions.

First, differentiating between giving a false promise of marriage and committing breach of promise by the accused, the Court in a number of cases, including Anurag Soni v. The State of Chhattisgarh (2019), has held that unless the accused has no intention to fulfil the promise of marriage right from the beginning, it would not amount to rape. There could be cases when the accused might have made a promise with all seriousness to marry a woman, but subsequently encountered unforeseen circumstances.

In the second category of cases, when a woman knowingly maintains physical relations for a prolonged period, it cannot be said with certainty that this was purely because of the alleged promise made by the accused to marry her. In other words, the physical relationship must be traceable directly to the false promise made, and it must not be qualified by other circumstances or considerations (such as love or passion for the accused). In Rajnish Singh @ Soni v. State of U.P. (2025), the Court quashed the FIR and all the proceedings against the accused. The complainant had maintained a sexual relationship for about 15 years with the accused and alleged sexual abuse only on learning that the appellant had married another woman. She had also on many occasions portrayed herself to be the wife of the appellant. The Court held that the relationship was consensual and with no element of deceit or misconception.

Third, if on the date of developing a physical relationship, the prosecutrix was already a married woman, surrendering before the man on a false promise of marriage will not fall within the definition of consent obtained on misconception of fact. After quoting many precedents set by the Supreme Court, the High Court of Madhya Pradesh in Abhishek Arjariya v. The State of Madhya Pradesh (2025) quashed the FIR and further proceedings based on similar facts.

Examining Section 69

Section 69 states that “whosoever, 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 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.” The explanation says “deceitful means” include “inducement for or false promise of employment or promotion or marrying by suppressing identity”.

Section 69 of the BNS was introduced as a separate offence; there were no changes to the definition of rape and consent. A man is said to commit rape under Section 63 of the BNS under circumstances falling under seven descriptions, out of which six are concerned with consent. While under five descriptions, the consent is vitiated under given conditions, such as fear or death or intoxication, other cases of “without consent” fall under “misconception of fact” as provided in Section 28 of the BNS. Consent defined under Section 28 of the BNS is vitiated if given by a person under fear of injury, or under a misconception of fact, unsoundness of mind, or intoxication, or under 12 years of age. It therefore implies that false promise of marriage is covered under the generic term “misconception of fact” given in Section 28 of the BNS.

Since the definition of rape and consent given in the BNS are pari materia to their definitions given in the IPC, the offence of sexual intercourse committed consequent to the false promise of marriage, i.e., misconception of fact, will still fall under the scope of the offence of rape. Once an offence is justified to be covered under the scope of rape, it cannot hold ground as another offence of lesser gravity as defined under Section 69 of the BNS. Thus Section 69 appears to be redundant. Further, unless an “exception” is carved out in Section 63 to exclude cases falling under Section 69, Section 69 cannot be held constitutionality valid. Also, Section 69 does not have a non-obstante clause. It is therefore, likely to be hit by Article 14 of the Constitution.

When Courts are quashing FIRs based on the precedents described above, it would be better for the police not to charge-sheet such cases. A preliminary inquiry should be conducted to establish whether a cognisable offence was committed or not. Such action will prevent unnecessary hardship to the accused person and also save time for our constitutional courts.

R.K. Vij, Former IPS officer