[This is a guest post by Sarthak Gupta and Priyam Agarwal]
The Bharatiya Nyaya Sanhita (BNS), 2023 was introduced by Parliament to replace the Indian Penal Code (IPC) that governed criminal jurisprudence for over 160 years. This reform introduces several new provisions, among which Section 69—addressing sexual intercourse obtained through deceitful means—has emerged as a particularly contentious provision. Section 69 seeks to codify and expand legal protections against sexual exploitation through false promises. However, its inclusion has sparked significant academic & legal discourse, with scholars critically examining its potential implications considering its language (calling it shamefully misogynistic), the intention behind its introduction (calling it a propertification of women's bodies), the potential for its misapplication (calling it a perfect recipe for misuse), and over-criminalisation of consensual sexual relations (criminalization of deceptive sex per se).
In this post, the authors aim to break down Section 69 of the BNS by looking closely at its legal genesis, and possible challenges in interpretation. By critically analysing the provision's language, intent, and potential practical applications, the authors aim to contend that the provision represents an unnecessary and potentially harmful legal intervention that redundantly criminalises complex interpersonal relationships, risks over-criminalisation of consensual sexual interactions, and fails to provide clear interpretative guidelines for distinguishing between genuine changes in relationship dynamics and sexual deception.
The Judicial Genesis of "False Promise to Marry" as a Criminal Offence
The offence of ‘false promise of marriage’ or as commonly termed ‘sex by deception’ was not stipulated in any of the provisions of the IPC, rather it was created by the Indian Courts through their interpretation of Section 375 IPC (Section 63 of the BNS). Section 375 defines rape and outlines the conditions under which a sexual act is considered an act, emphasising the lack of consent as a central element. The term ‘consent’ is not defined under the IPC, however, Section 90 of IPC defines ‘consent’ in negative terms as "a consent is not such a consent as it intended by any section of this Code if the consent is given by a person under fear of injury", or a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception.”
The first case of false promise of marriage before the Supreme Court was Uday v. State of Karnataka (2003). In this case, SC acquitted the accused based on the reasoning that the prosecutrix, a mature college student, consented to sexual intercourse with the accused out of her own free will. The Court found that she was fully aware of the consequences of her actions and her consent was not based on a misconception of fact. SC observed the essential ingredients of Section 90 IPC as follows:
- Consent must be proven to have been given under a misconception of fact; and
- It must be demonstrated that the accused knowingly obtained consent through such misconception.
Subsequent SC judgments added multiple layers to the structure of the above principles. Yedla Srinivasa Rao v. State of A.P. (2006), held that obtaining sexual consent through a deliberate false promise of marriage constitutes rape. Similarly, in State of U.P. v. Naushad (2013), the Court convicted an accused who obtained sexual consent by falsely assuring marriage, subsequently refusing to marry after the woman became pregnant. In Pramod Suryabhan Pawar v. State of Maharashtra (2019), SC crystallised the legal standard, stipulating that, first, the consent must involve active, reasoned deliberation. Second, the marriage promise must be demonstrably false and lastly, the promise must directly influence the woman's decision to engage in sexual relations The SC in Pramod Suryabhan consistently distinguished between two critical concepts: a "false promise to marry" and a "mere breach of promise". A false promise involves intentional deceit at the time of making the promise, whereas a breach of promise might result from genuine intentions thwarted by unforeseen circumstances. In Deepak Gulati v. State of Haryana (2013), emphasised that conviction requires proving the accused's mala fide intentions at the promise's inception. Unforeseen circumstances preventing marriage do not automatically constitute false promise. Dhruvaram Murlidhar Sonar v. State of Maharashtra (2019) further refined this approach, acknowledging that not all cases of unfulfilled marriage promises constitute rape, particularly when genuine affection exists.
Thus, despite being a judicial creation and not being explicitly stated in any provision of IPC, the offence of "sexual intercourse based on the false promise of marriage", was duly covered through judicial interpretation of Sections 375 and Section 90 IPC, and such an act of sexual intercourse had been treated as ‘rape’. Through a series of judgments, courts established specific criteria and conditions for proving this offence. These include:
- The accused must have had no intention of marrying the victim from the very beginning
- The false promise must have been the primary reason for the victim's consent
- The accused must have known or had reason to believe that the consent was given based on a false promise.
- The consent must have been obtained through intentional deception, not merely a change of mind or circumstances.
Thus, Court has consistently emphasised the distinction between a genuinely false promise and a breach of promise due to unforeseen circumstances. This approach highlights the importance of the accused's intent at the time of making the promise, rather than simply focusing on the outcome. The evolution of this jurisprudence has created a framework that allows for the prosecution of cases where consent is vitiated by deception, while also providing safeguards against misuse of the law in cases of genuine changes of heart or circumstance.
Old Wine in a New Bottle?
The bare reading of Section 69 BNS reads that any individual who engages in sexual intercourse with a woman by using deceitful means, including making a false promise of employment, promotion, or marriage with no intention of fulfilling it, where such intercourse does not constitute rape, is an offence which shall be punished with imprisonment for up to ten years and shall be liable to fine. The primary issue in Section 69 of the BNS concerns establishing, identifying, and proving the intention behind false promises of marriage, employment, or promotion. This provision targets ‘deceitful conduct’ where an individual uses false assurances to persuade another person to engage in sexual intercourse. This requires not only proving that a promise was made but also that it was intended to be ‘deceptive’ from the outset. Such a determination is inherently subjective, as it involves analyzing the accused's mental state and intent at the time the promise was made.
The codification of false promise to marry in Section 69 of the BNS represents a concerning example of how judicial doctrines when transformed into statutory offences without careful consideration, can create overbroad and potentially harmful law. First, what worked as a flexible judicial doctrine has been ossified into an inflexible statutory offence. When courts developed the "false promise of marriage" doctrine under Sections 375 and 90 of the IPC, they could exercise discretion, examine contextual factors, and develop nuanced case-by-case applications. Courts could consider the specific circumstances, the nature of the relationship, the parties' backgrounds, and various other factors to determine whether consent was truly vitiated by deception. This judicial flexibility was crucial in distinguishing between malicious deception and genuine changes of heart.
Second, Section 69 of the BNS has extracted this doctrine from its original context within rape law (where it was part of a broader analysis of consent and misconception) and created a standalone offence. This decontextualisation is problematic because it loses the careful balancing that courts had developed between protecting victims of genuine deception while avoiding criminalisation of all broken promises of marriage. The provision lacks the sophisticated safeguards that courts have developed over time. For instance, in cases like Deepak Gulati, (2013) and Dhruvaram Murlidhar Sonar,(2019), SC had carefully distinguished between mere breaches of promise and false promises made with initial deceptive intent. The BNS provision, however, lacks these crucial distinctions, potentially criminalising a much broader range of conduct than the courts ever intended. Lastly, the BNS provision fails to incorporate the evolving understanding of consent, autonomy, and relationships that courts had begun to develop. Modern judicial decisions have started to move away from paternalistic assumptions about women's sexuality and recognise the complexity of contemporary relationships. The BNS provision, however, seems to revert to a more simplified and potentially regressive understanding.
While courts could exercise discretion to prevent misuse of the doctrine, a statutory offence creates a much more rigid framework that could be weaponized in cases of relationship breakdowns. This is particularly concerning given India's social context, where relationships outside marriage often face social stigma (See, the Uttarakhand UCC) and where criminal law can be used as a tool of social control. The fundamental issue is that the BNS has attempted to convert a judicial doctrine - which worked precisely because of its flexibility and context sensitivity - into a rigid statutory offence without adequately considering the implications of this transformation. What served as a useful tool for courts to address genuine cases of sexual exploitation through deception now risks becoming an overbroad criminal provision that could criminalise a wide range of consensual relationships that end in broken promises. The codification creates a dangerous catch-all framework.
Arguendo, in a relationship between X (male) and Y (female) where they engage in consensual sexual intercourse. X expresses feelings for Y and makes informal statements about possibly marrying her in the future, but no explicit promise is made. Over time, circumstances change, leading to a breakup. Subsequently, Y filed a complaint against X under Section 69 of the BNS, alleging that her consent to sexual intercourse was obtained through ‘deceitful means’ based on X's ambiguous statements about marriage. The above situation raises the key question of whether X's initial intention was genuine or deceitful. The rationale from Deepak Gulati, (2013) and Dhruvaram Murlidhar Sonar,(2019), emphasises that for a conviction under Section 63 (formerly Section 375 IPC), it must be proven that X had ‘no real’ intention to marry from the outset. Given that X's intentions were sincere at the beginning, any legal action would likely be viewed as a breach of promise rather than an act of ‘deceit’. However, the vagueness surrounding the meaning of 'deceitful' intentions complicates matters, as neither the courts nor the legislative have provided clear guidelines on how to assess such intent, leaving room for subjective interpretation. In Uday v. State of Karnataka & Deepak Gulati, (2013), the SC emphasised that mere expressions of future intent do not constitute false promises unless there is clear evidence that the accused never intended to fulfil the promise. Similarly, the Court has held that ‘consent’ must be evaluated based on the context and intentions at the time of the act. If in the above hypothesis, Y's consent stemmed from genuine affection rather than reliance on a clear promise, it becomes challenging to argue that her consent was vitiated by deception.
Section 28 BNS (earlier Section 90 IPC) invalidates ‘consent’ obtained through misconception of fact, such as false promises of marriage or employment inducements. While Section 69 introduces the concept of "sexual intercourse not amounting to rape," a careful reading reveals its potential redundancy. When consent is vitiated under Section 28, the sexual interaction inherently falls within the definition of ‘rape’. The prosecutrix's consent, being legally compromised due to deception, means the act should be prosecuted for the crime of rape under Section 63 rather than Section 69. Hence, the overlap between Sections 63 and 69 raises questions about the necessity of the latter, as situations involving deception are already covered under existing provisions. The subjective nature of personal relationships complicates matters further. Y's feelings and motivations for consenting to sexual intercourse may not have been solely based on X's statements but rather on mutual affection and desire. Thus, proving that her consent was vitiated by a false promise becomes challenging.
The absence of explicit promises creates a precarious situation for X, who may find himself facing serious allegations despite the consensual nature of their relationship. The above scenario highlights broader concerns regarding Section 69 of the BNS, which aims to address sexual intercourse obtained through deceitful means. However, its application can lead to inconsistencies and potential misuse, as individuals may retrospectively claim that their consent was based on misleading promises after a relationship ends. The law's vague definitions surrounding 'deceitful' intentions further complicate its enforcement, risking arbitrary interpretations that could unfairly penalise individuals like X.
Notes from foreign fields
Laws addressing sexual offences based on false promises of marriage vary significantly across jurisdictions, reflecting different cultural, social, and legal contexts, with significant variations between common law and European jurisdictions. While some legal systems advocate for comprehensive criminalisation of any deceptive sexual interaction as a violation of sexual autonomy, most scholars and jurisdictions recognise the need for nuanced differentiation. Moreover, the term ‘deceitful’ from the comparative perspective has been defined through varied acts which inter alia include, a person lying to obtain sex [Israel v. Alkobi, (Israel)]; biological sex [McNally v. R (UK)]; using contraception [Julian Assange v. Swedish Prosecution Authority (UK)]; having sexually transmitted diseases [R. v. Cuerrier, (Canada)], removing a condom during sex [R(F) v. DPP, (UK)]; false promise to withdraw before ejaculation voids consent [R. v. Lawrence, (UK)]; false promise to marriage [Parker v. Bruner, (USA)]; false facial features like moustache [R. v. Cuerrier, (Canada)]; and misleading advertisement of wealth or social status [People v. Evans (USA)].
The conventional criminal law framework distinguishes between two categories of sexual deception: fraud in factum (deception about the very nature of the sexual act itself, such as medical manipulation or spousal impersonation) and fraud in inducement (deception that induces consent, like false marriage promises). In European Countries, like Germany and Spain, consensual sexual interactions obtained through deception between mentally competent adults are not typically criminalised, with Italy specifically limiting criminal sanctions to cases of direct personal impersonation. Common law countries like Canada, England, and the United States tend to criminalise acts falling under fraud in factum, while being more hesitant to penalise fraud in inducement. In the United States, the Tennessee Criminal Code under Section 39-13-503(a)(4) (2005), has been redefined to include “sexual penetration accomplished by fraud.” Alabama also identified the offence of Sexual Misconduct which applies to men only, who engage in sexual intercourse with a woman "with her consent where consent was obtained by the use of any fraud or artifice". California, Idaho, and many other states have similar provisions. However, it must be noted that fraud in the factum occurs when the Defendant’s deception causes the victim to believe that she is consenting to an act that is not sexual intercourse [See, Prof. Blum here]. Similarly, in the UK, the Sexual Offences Act 2003 criminalises sexual offences extending impersonation from impersonating the woman’s legal husband to "impersonating a person known personally to the complainant".
In Canada, Section 265(3) of the Criminal Code includes provisions against sexual assault and recognizes that consent must be informed and voluntary. In R v. Crangle, (2010), the Canadian Court convicted the accused of sexual assault after impersonating his twin brother and sleeping with his brother’s girlfriend. In Australia, Section 218(1)(a) and (4) of the Criminal Code states that any person by coercion procures another person to engage in a sexual act, either in Queensland or elsewhere, wherein the coercion means intimidation or threats of any kind; or assaulting a person; or damaging the property of a person, or making false representations or using false pretense or fraudulent means. In the case of R. v. McKelvey [1914], the Australian Court found the accused guilty of sexual assault on the fact that he obtained sex by lying about marrying the victim.
Similarly, Section 376H of the Singapore Penal Code, any "procurement of sexual activity by deception or false representation (where there is penetration): imprisonment of up to 10 years or fine or caning, or any combination of such punishments." Section 346(a)(1) of the Israel Penal Law states that "if a person had intercourse with a minor who has reached age 14 but has not yet reached age 16 and who is not married to him, or if a person has intercourse with a minor who has reached age 16, but has not yet reached age 18, by exploiting a relationship of dependence, authority, education or supervision, or by a false promise of marriage, then he is liable to five years imprisonment."
Thus, the common law countries' jurisdictions adopt a markedly different approach to addressing sexual deception, preferring a more nuanced and contextual legal strategy rather than creating a specific, standalone provision for sexual assault based on false marriage promises. Instead of establishing a discrete legal category for false marriage promise-induced sexual interactions, these jurisdictions typically address such scenarios through broader interpretive frameworks of sexual assault, consent, and fraud. This approach allows for more flexible judicial interpretation, enabling courts to assess the specific circumstances, intent, and nature of deception on a case-by-case basis. By embedding such considerations within existing legal doctrines rather than creating a separate statutory provision, common law systems (discussed above) maintain a more dynamic and context-sensitive approach to understanding and adjudicating complex sexual interactions involving deception.
Conclusion
Section 69 BNS is not just a mere codification of existing judicial interpretations, the language of the provision introduces an ambiguous concept of ‘deceitful means’ without providing clear interpretative guidelines. This creates a significant risk of arbitrary legal application, potentially criminalizing the inherent complexities of interpersonal relationships where intentions may have genuinely evolved or where consent was not solely predicated on a specific promise. Section 69 complexity reminds us of the legal intricacies observed where constitutional privileges created unintended loopholes in accountability. In the case of P.V. Narasimha Rao v. State, the Court recognised that Members of Parliament enjoy certain privileges under Article 105 of the Constitution providing a shield to them from any legal consequences when acting within their parliamentary duties. However, an important distinction was made: those who accepted bribes but did not cast votes in Parliament were deemed liable for prosecution, while those who did vote were granted immunity. This distinction led to an unintended consequence, where law could be exploited, allowing some individuals to evade accountability while others faced legal repercussions. In March 2024, the SC addressed this issue by overturning the Narasimha Rao Rule, emphasising that such privileges should not shield individuals from criminal liability when their actions fall outside the scope of parliamentary functions. In Section 69, we see a parallel risk—a provision ostensibly meant to protect against sexual deception might paradoxically become a mechanism for retrospective legal manipulation of consensual relationships, much like how parliamentary privilege was historically misused to shield certain actions from genuine legal scrutiny.
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