Rape On The Pretext Of Marriage - Section 69 Of Bharatiya Nyaya Sanhita, 2023 : A Provision Built To Be Abused

The Bharatiya Nyaya Sanhita, 2023, the Act which replaced the Indian Penal Code, 1860, introduced a new offence which had not been codified in any previous statute—namely, sexual intercourse by “deceitful” means. Prior to the enactment of the BNS, this offence was not codified and did not form part of the IPC. This is not to say that the idea did not exist earlier, but rather that it existed only as a judicial construct, developed by combining two distinct offences—rape (Section 375, IPC) and Consent known to be given under fear or misconception (Section 90, IPC) in a joint reading—without it being a separate statute. The BNS altered this position by formally codifying the offence as a standalone crime .

As a law, the provision is functionally structured in a manner that makes it susceptible to abuse, enabling its use against innocent individuals by charging them with a heinous offence which they did not commit and had no intention of committing (mens rea). Further, the provision does not withstand jurisprudential scrutiny, as it violates two fundamental principles of natural justice and completely distorts the concept of consent in sexual relationships.

What is Section 69 Of Bharatiya Nyaya Sanhita?

Section 69, Bharatiya Nyaya Sanhita, 2023 states that:

“Whoever, by deceitful means or by making a promise to marry a woman without any intention of fulfilling the same, and has sexual intercourse with her, such sexual intercourse not amounting to the offence of 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 to the section provides that “deceitful means” includes a false promise of employment or promotion, inducement, or marrying after suppressing one's identity.

Several issues with the provision become apparent merely from a reading of its language. The section is drafted in an extremely vague manner, which allows for substantial misuse, as will be demonstrated in this article. The only positive aspect of the provision is that it expressly distinguishes the offence from “rape”. This offers limited relief to the accused by sparing them the punishment and lifelong stigma associated with a conviction for rape.

The Problem with “Intention”

The first major issue arises from the use of the word “intention”. How is one to conclusively establish an intention to deceive in such cases?

The Supreme Court, in Mahesh Damu Khare v. State of Maharashtra (2024)LiveLaw (SC) 921, held that for the offence to be made out, the sexual relationship must be founded solely on the promise of marriage, and that such promise must have been made at the beginning of the relationship with no intention of ever fulfilling it. The Court further clarified that a mere breach of a promise to marry does not constitute an offence - it must be foundational to the relationship's existence.

Despite these guidelines, it is not uncommon for High Courts to quash proceedings under this provision by observing that consensual sexual relationships are often given a criminal colour only after they turn sour. Such complaints not only waste judicial time and resources but also trivialise the offence of rape, a concern that the Supreme Court noted in Samardhan v. State of Maharashtra & Ors.2025 LiveLaw (SC) 1137

The Process is the Punishment

Despite the clear guidelines laid down by the Supreme Court, the abuse of Section 69 continues to be rampant. The principal reason is that the process itself becomes the punishment.

At the preliminary stage, it is practically impossible for an FIR to be dismissed or for proceedings to be quashed by higher courts, since proving or disproving “intention” necessarily requires a detailed examination of evidence, which usually occurs only after a prolonged trial. The non-bailable nature of the offence exacerbates this problem. In addition to legal hardship, the social cost of being labelled a “rapist”—despite the section expressly stating that the act does not amount to rape—forms a significant part of the harm caused.

The vague usage of the word “intention”, coupled with the effective shifting of the burden onto the accused to disprove fraudulent intent from the inception of the relationship, results in unnecessary and excessive criminalisation.

Beyond Distortion of Consent

Beyond its susceptibility to misuse, the provision suffers from more fundamental conceptual flaws. Chief among them is the manner in which it distorts the universally accepted understanding of consent in sexual relationships.

Black's Law Dictionary, one of the most widely relied-upon legal dictionaries in India, defines affirmative consent—the form of consent relevant in sexual encounters—as:

“Consent that is freely, willingly, and clearly demonstrated in words and acts during a sexual encounter, usually just before intercourse.”

(Black's Law Dictionary, 12th ed., p. 328)

The phrase “just before” is of particular significance, as it temporally limits consent to the moment immediately preceding the sexual act, thereby placing a reasonable boundary on the liability of parties engaging in consensual sexual relations.

Section 69, however, permits the retrospective negation of consent based on the non-occurrence of a future event—namely, marriage. In effect, it allows consent to be withdrawn ex post facto, not on the basis of coercion or misrepresentation at the time of the sexual act, but on the failure of a subsequent promise. This fundamentally undermines and nullifies the established temporal framework of consent.

Violation of Principles of Natural Justice

Further, the provision violates two basic principles of natural justice, namely—

1. Nullum crimen sine lege - “No crime without Law”, is a fundamental principle of criminal law which prohibits the retrospective trial of an individual for an action which during its commission was not a crime, but now is, this principle is enshrined in Article 20(1) of the Indian Constitution.

Section 69 was not a separate crime when the Indian Penal Code was in force, it has only been made a separate offence after the enactment of the Bharatiya Nyaya Sanhita, 2023, therefore individuals which are being tried for an intercourse which occurred before the enactment of the BNS, under the provisions of the old IPC are being tried for something which was at the time of the commission of act - not a crime.

Furthermore, prosecution under the provisions of the IPC means that the accused is being tried for “rape”, while the BNS clarifies that the offence is a sexual offence not amounting to rape. The former is a much more serious offence, carrying graver consequences, for something which, at the time of its commission, was not a crime.

1. Audi alteram partem— “no person should be condemned unheard” is a fundamental principle of criminal law which states that before a person is sentenced to punishment, they should, during the trial, have a meaningful opportunity to respond to the allegations leveled against them.

An accused under Section 69 has no meaningful opportunity to respond to a charge rooted in the other party's subsequent change of mind, because the accused's defence—that consent was present during the sexual intercourse for which he is charged—is effectively nullified by the petitioner's retrospective assertion, regardless of the contemporaneous reality.

Section 69, BNS, 2023 has, in its legal architecture, in-built features which, by their mere exercise, violate basic tenets of law and the rights of the accused. It distorts well-established legal principles and definitions, which opens up a wide area for abuse and exploitation. Therefore, the only viable solution is either the repeal of the provision or considerable reform through amendments which minimise the scope for its abuse.

Author is a Law student at University Of Delhi. Views are personal.