Written by Sainikitha.OL
Intern- Lex Lumen Research Journal,
December 2025
Introduction:
The newly added s. 69 of the BNS had been subjected to a lot of debates and raised eyebrows for its overlapping connection with other provisions. Before jumping into the constitutional perspectives, let us understand the intent of the legislature for introducing this provision. Indian laws often aim to promote and protect the interests of women. It aims to protect women from exploitative practices that harm the interests of the women and their overall well being. As a result of which a new protection had been added to the BNS u/s. 69. This provision basically punishes sexual intercourse by employing deceitful means.
Understanding the provision:
The section aims to penalize and punish individuals who use deceitful measures such as false and fake promise of marriage or employment opportunities with the intent to engage in a sexual intercourse with women. A key aspect of this provision is that such an intercourse does not amount to rape but rather only a sexual intercourse. The punishment for this offence is imprisonment which may extend to 10 years imprisonment and fine. This is a cognizable offence meaning that the police shall arrest the accused without a warrant and without any prior permission from a magistrate. And a non bailable offence meaning the accused is not automatically entitled to bail but rather must apply to a court and bail depends on the judicial discretion. The offence is also triable by Court of Session.
Essentials:
- There must be a promise to marriage/employment
- No intention of fulfilling the promise
- Sexual intercourse not amounting to rape u/s. 63 of the Act.
Purpose:
To protect women and punish the offender who uses deceitful means including fake promise of marriage to sexually exploit the woman. This was also introduced to fill the prior legal gaps where cases were dismissed for failing to prove deceit or intention. Here, Sec 69 clearly iterates the intention part where promise is made without fulfilling the same. Also aims to differentiate voluntary consent from consent obtained by using deceitful measures.
Historical background:
The BNS was introduced on 1st July 2024 replacing the old Indian Penal Code of 1860. The aim was to drift from the colonial laws made by the Britishers during their reign. However, the old provisions remain intact with a few new additions and removals to it.
The purpose of bringing s. 69 is primarily to protect women from exploitative practices. Oftentimes, the courts were burdened by the cases of rape and sexual intercourse on a promise of marriage. Here, s. 69 does not deal with rape but rather acts other than rape carried out by deceitful means of promise of marriage i.e. sexual intercourse. Thus, the overall object is to protect women from harm and exploitative practices.
Area for confusion:
The section 63 defines rape and it generally means sexual intercourse without valid consent.
Consent includes,
- Misconception of fact which is known to person seeking or obtaining consent.
- Consent given under fear of injury.
But here, in s.69 when sexual intercourse happens without valid consent, it automatically amounts to rape. This gap and confusion arise when s. 69 is invoked.
Constitutional Concerns:
This provision violates Art 14, 19 and 21 of the Indian Constitution. The live in relationship and pre-marital relationship would often be abused using this provision whereby one of the partners choosing to part ways will have to face legal challenges put forth by the other. The right to privacy protected under Art 21 will be subjected to various court intervention. Also, in cases where one of the partners chooses to be a celibate, the other might bring an action under this section which violates the religious rights protected u/a. 25 of the Constitution. The doctrine of fair notice might be abridged by this provision since every citizen must know what constitutes an offence. Here, any physical relationship might be labelled as a sexual intercourse without consent, undertaken by deceitful measures. Thus, this provision is perilous to various fundamental rights and individual freedoms protected by the Constitution.
Key case laws:
In the case of Rajnish Singh @Soni v. State of U.P (2025) – The court had quashed the proceedings against the accused in a case of fifteen year consensual relationship where deceit was not involved and the relationship was consensual.
The Kerala High Court had ruled out married women from the purview of this section since deceitful measures involve sexual intercourse on a fake promise to marriage in the case of XXX v. State of Kerala & Anr. In the present case, the bail was granted to the accused.
In Deepak Gulati v. State of Haryana, it was held that the Court had to analyse the intent of the accused which could be either Bonafide or a mere intent to exploit the women.
In Inder Chand Bagri v. Jagadish Prasad Bagri and Anr(2025), it was held by the apex court that physical intimacy during the course of a relationship cannot be branded as rape just because the relationship failed to culminate into marriage.
Challenges:
- Violates Constitutional Principles.
- Potential for misuse.
- Overlaps with other provisions of the Sanhita causing confusion.
- LGBTQ rights remain unaddressed.
- Protects women and overlooked the fact that men could be victims of deceitful acts although uncommon.
Conclusion:
Considering all the above arguments and facts, it is pertinent to understand that this provision might bring future harms especially in cases of long term affairs and live in relationship. Even a temporary break or break up could be labelled as sexual intercourse by deceitful means, potentially leading to imprisonment extending up to 10 years. Only time can answer to the validity of this provision as the courts hear matter relating to it
References:
https://thelegalquorum.com/bharatiya-nyaya-sanhita-section-69/
https://www.drishtijudiciary.com/current-affairs/section-69-of-bns
https://universalinstitutions.com/section-69-of-bns-redundancy-and-legal-concerns/
