S.69 BNS | Hiding Live-In Relationship, Child With Another Amount To 'Deceitful Means' To Have Sexual Intercourse With Woman: Kerala High Court

Justice A. Badharudeen made the observation while considering a plea for anticipatory bail under Section 18A of the SC/ST Prevention of Atrocities Act.

“At the time of fixing the marriage and prior to that, the appellant was fully aware of the fact that he had a relationship with a lady in the nature of marriage and that a child was also born to them. Despite this vital aspect, the same was suppressed from the knowledge of the defacto complainant and her family, and the marriage fixation ceremony was conducted and the marriage was fixed. Subsequently, on the said premise of marriage, after suppressing the earlier relationship, the defacto complainant was subjected to sexual intercourse by deceitful means. Though the said overt act may not be treated as rape, the same would fall under the first situation dealt with in Section 69 of the BNS,” the Court observed.

The appellant is accused of the offences under Sections 318(4) [Cheating], 3(5) [Common intention] and 69 [Sexual intercourse by employing deceitful means, etc.] BNS along with Section 3(2)(va) of the SC/ST Act.

The allegation was that the accused, not being a member of the SC/ST community, suppressed his live-in relationship and the fact that he was a father of a three-year-old child when the marriage between the accused and the victim, a member of SC/ST community was fixed. It is further alleged that the victim went with the accused to a hotel room in Wayanad and that he compelled her to have sex with him on the premise that they already decided to marry.

He had earlier approached the Special Court for anticipatory bail but the same was rejected. He then came before the High Court in appeal.

The accused contended that the offence under Section 318 would not be attracted since there is no delivery of property. It was also argued that offence under Section 69 also would not come in since there is no retraction from offer of marriage and he is willing to marry the victim.

It was further submitted that mere suppression of his relationship without marriage or the birth of his child would not prima facie show commission of offences and therefore, there is no bar to grant anticipatory bail as per Section 18 of the SC/ST Act.

The prosecution argued that suppression of relationship in nature of marriage and the child born in it is a deceitful means contemplated under Section 69 BNS. It was submitted that the bar on pre-arrest bail as per Section 18 SC/ST Act would come into play.

The Court, after hearing the parties, referred to Section 69 BNS and observed:

“Section 69 deals with two situations. The first situation is that, whoever, by deceitful means, has sexual intercourse with a woman and such sexual intercourse does not amount to the offence of rape, then the same is an offence under Section 69…The second situation is that, whoever, by making a promise to marry a woman without any intention of fulfilling the same, has sexual intercourse with the woman and such sexual intercourse does not amount to the offence of rape, then also the same is punishable in a similar manner.”

It found that since the BNS offences alleged against the accused are those corresponding to the schedule offences under the IPC, the offence under 3(2)(va) of the SC/ST Act also would be attracted. It was also found that the bar under Section 18 would apply in the present case since prima facie, the offences alleged are made out.

The Court was of the view that custodial interrogation was necessary in the case and therefore, grant of anticipatory bail would impede with the investigation. It thus dismissed the appeal and confirmed the order rejecting anticipatory bail to the accused.

Counsel for the appellant: R. Bindu (Sasthamangalam), G. Rajagopal (Kummanam), Ajay T.S.

Counsel for the respondents: M.A. Shihab – Public prosecutor