Guest Post: On Promise to Marry and its Complexities

(This is a guest post by Shashank Sinha)

An interesting pattern can be observed in recent judgements which virtually creates an exception for the offence of rape by false promise of marriage. These judgements, which will be presently discussed, deal with the question of whether a complaint for this offence (which now stands codified with s. 69 of the Bharatiya Nyaya Sanhita 2023) is maintainable when the complainant knew that the accused was married at the time she had intercourse with him. Of course, this offence itself and its existence is hardly uncontroversial but the scope of this brief post is far too limited to be able to properly delve into those murky waters.

I first briefly go through some of the judgements which discuss the question broached above. Secondly, it will argue that these judgements are flawed as they fundamentally misunderstand the offence as it was created by the Supreme Court in Uday v. State of Karnataka [(2003) 4 SCC 46] and discuss certain judgements which have, directly or implicitly, held to the opposite effect. Finally, I offer my take on the correct position of law on this point.

Flawed Grounds

A spate of recent judgements have treated knowledge of the fact that the accused was married at the time of the intercourse on the part of the complainant as either completely exculpatory or as a contributory factor in the favour of the accused. The first of this line of judgements is that of the Kerala High Court in Sayooj S v. State of Kerala [2025 SCC OnLine Ker 4414; Decided on 02.07.2025] where the High Court, while considering a bail application, treated the complainant’s prior knowledge about the accused’s marital status as a favourable factor and granted bail [Para 9]. The Court also observed that it was possible that in the facts of the case, the complainant would be precluded from even raising a complaint under s.69 BNS. [Para 6]

One of the judgements the Court cited to take this view was its decision in Ranjith v. State of Kerala [2021 SCC OnLine Ker 5116; Decided on 15.12.2021], where the appellant was acquitted citing the fact of knowledge regarding the marriage of the appellant at the relevant time. Of course, there were other factors too on which the Court arrived at the conclusion that it did in Ranjith. However, what I do question is its holding on the point germane here. In the end, the Court in Ranjith, despite the many factors pointing in favour of the accused, still chose to rely, to some extent, on the fact that the complainant knew the marital status of the appellant and incorrectly held that it was a relevant factor in ascertaining whether the complainant’s consent was based on a false promise of marriage.

Another judgement in this line is that of the Supreme Court in Naim Ahmed v. State, [(2023) 15 SCC 385; Decided on 30.01.2023] where the fact that both the complainant and the appellant were married at the time of their relationship, which fact was known to the complainant at least for part of their relationship, was virtually treated as a complete defence even while the Court itself observed that one would be tempted to hold the appellant guilty if one remained limited to the relevant statutory provision and precedent laid down by it including its judgement in Uday. [Paras 18 and 21] The Supreme Court has hardly held so once. Recently, the Supreme Court in Pramod Kumar Navratna v. State of Chhattisgarh, [2026 INSC 124; Decided on 05.02.2026] explicitly ruled that an allegation of rape on the basis of false promise to marry would be unsustainable if one of the parties was married (as the complainant was here) and the same was within the knowledge of the other party. The Court ruled so despite the fact that the complainant’s divorce petition was pending adjudication. [Para 19] Again, in Jaspal Singh Kaural v. State (NCT of Delhi), [2025 INSC 457; Decided on 07.04.2025] one of the factors on which the Court relied on to discharge the appellant was the fact that the prosecutrix already knew that the appellant was a married person. [Para 13]

A Fundamentally Flawed Understanding of the Offence

One need say no more in the matter than the fact that in Indian law it has been the position for a very long time now that marriage is no longer sacrosanct in the sense that it may be legally ended. It is very much possible for a person to reasonably anticipate being married to another person while still being part of a subsisting marriage by hoping to end the latter first. In this view, it is quite inexplicable why courts recently seem to have taken a view that it is not possible for an individual to have this reasonable expectation when it is fully supported by the legal system. It would be a different thing to use knowledge of this fact to assess conduct of the parties but the judgements cited above use them as a factor in the offence itself as if its absence is an integral constituent of the offence.

It would be apposite, therefore, to refer to what actually are integral constituents of this offence. When the offence was, seemingly, created by the Supreme Court in Uday, it was only to curb the supposed menace of men inducing a false belief in women that they will marry them and obtaining their consent for sexual intercourse even when they had no intention of doing so. The crucial ingredients of the offence, therefore, are -

• False representation made by the accused to the prosecutrix to promise future marriage
• Sexual intercourse between the accused and the prosecutrix
• Consent given under the belief that the accused intends to marry her in the future

Nothing requires the accused to not be a married person or even makes it a relevant fact. The fact that the accused is married does not preclude him from making a promise of marriage in the future for two reasons. Firstly, the belief that he may induce might be such that he will marry the prosecutrix by legally ending his marriage by divorce or any other means available to him by the law. Secondly, the ability of the accused to marry the prosecutrix is not a relevant consideration for the simple reason that the ingredient of the offence is not whether the belief of the prosecutrix is tenable in law but whether it is bona fide and reasonable. While there is a fine line between the two, there is a difference nonetheless. The new section on this offence does state this does not amount to rape. However, the ingredients of the offence still remain the same and therefore these judgements cited above will unfortunately remain good law.

Conclusion

In conclusion, the only enquiry relevant to this offence is whether at the time of the intercourse, the accused made a promise to marry the complainant, whether the promise was genuine or fraudulent, and whether this gave rise to a reasonable expectation on the part of the complainant which, in turn, played a factor in her consenting to the intercourse. The marital status of either party should not be a relevant enquiry. One hopes, therefore, that these judgements do not hold the field for long and if this offence is to continue on the statute books, then it should, in the very least, be consistent.