Subsequent Failure To Marry Cannot Retrospectively Render Consensual Relation As Offence Under S.69 BNS: Kerala High Court

Justice Jobin Sebastian, issued the directions in a petition filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS).

The prosecution case was that the accused had sexual intercourse with the de facto complainant at different locations after promising to marry her. The complainant subsequently became pregnant, following which the accused allegedly asked her to abort the child. The FIS stated that the relationship began in February 2026.

The counsel for the petitioner submitted that the FIS would indicate that the sexual intercourse took place with the de facto complainant. It was also submitted that at the time the relationship commenced, the complainant was still legally married and her marriage had not yet been dissolved. She obtained a divorce only in March 2026.

Before going into the facts of the case, the Court reiterated that its jurisdiction under Section 528 BNSS is limited at the stage of considering a plea for quashing. While the High Court can examine whether the allegations, on their face, disclose the ingredients of the alleged offences, it cannot undertake a meticulous assessment of evidence or conduct a mini-trial.

Where the allegations give rise to disputed questions of fact requiring appreciation of evidence, those questions ordinarily have to be left to the trial court.

The Court found that the FIS did not specifically allege that the accused knew about the pending divorce proceedings or that he had promised to marry the complainant after her existing marriage was dissolved.

In these circumstances, the Court held that the allegation that the complainant consented to the sexual relationship solely on the basis of a promise of marriage could not, on the face of the FIS, establish the necessary ingredients of Section 69 BNS.

“The mere existence of a promise to marry, without the necessary factual foundation to establish that such promise was false from its inception and that it had a direct nexus with the consent for the sexual act, would not, by itself, be sufficient to attract Section 69 of the BNS.” Court held.

The Court drew a distinction between a false promise to marry and a subsequent failure to fulfil a promise to marry. The Court noted that the criminal liability based on a false promise requires material indicating that the accused never intended to fulfil the promise when it was made.

“A subsequent failure to marry, by itself, cannot retrospectively render consensual sexual intercourse an offence,” the Court held.

The Court also took note of the fact that the alleged sexual relationship was not confined to a single incident. According to the FIS, the parties had sexual intercourse repeatedly in different places including the accused's house and the complainant's house.

The Court observed that the allegations prima facie indicated a continuing relationship between two consenting adults. The complainant's subsequent divorce and her engagement with the accused on March 11, 2026 could be relevant to the later course of the relationship, but those subsequent events could not by themselves establish that her initial consent had been obtained through deceit or a false promise.

Relying on the Supreme Court's decision in Mahesh Damu Khare v. State of Maharashtra [2024 (7) KHC 460], the Court noted that where a physical relationship continues for a prolonged period with the woman's knowledge, it cannot readily be concluded that the relationship was purely the result of an alleged promise of marriage. There must be a direct nexus between the promise and the sexual relationship for consent to be treated as vitiated by a misconception of fact.

The Court separately considered the allegation under Section 316(2) BNS. The FIS alleged that after learning that the complainant was pregnant, the accused asked her to abort the child and thereby “cheated” her.

The Court held that the mere use of the expression “cheated” in the FIS cannot, by itself, constitute the offence. The factual allegations must disclose the essential statutory ingredients of the offence.

The Court thus quashed the FIR and all further proceedings against the petitioner and allowed the criminal miscellaneous case.

Case Title: Zahid Shanavas v State of Kerala

Case No: Crl. MC 4652/ 2026

Citation: 2026 LiveLaw (Ker) 491

Counsel for Petitioner: Rameez Nooh, Fathima K, Anjana S. Raj, Krishendu K.V, Jenna Susan Baji, Muhammed Savad

Counsel for Respondent: K.N. Muhammed Thanveer, P. Rafthas, Megha K. Xavier (Sr. GP)