INTRODUCTION
Indian criminal jurisprudence has experienced a drastic change following the introduction of Bharatiya Nyaya Sanhita (BNS) from the Indian Penal Code (IPC) on 1st July 2024. One such inclusion experienced is Section 69 of Chapter V of the BNS. Recently, a cricketer was booked under Section 69 of the BNS, charged for ‘offence against women’ and sexually exploiting a woman under a false pretext of marriage. It was contented on behalf of the state that the accused had sexually exploited the complainant over five years and introduced her to his family under the pretext of marriage. While the Allahabad High Court granted interim bail to the cricketer, this case raises multiple socio-legal questions. The Indian legal systems have repeatedly acknowledged the potential of misusing the said provision; their reasoning has often veered between victim protection and scepticism about agency. The Supreme Court and the subsequent High Courts all over the country have pointed out unconventional obiter dicta upholding the interest of justice, but a sheer need for policy reforms is observed.
This article advocates for a proportional approach instead of repealing the whole section and suggests relevant policy measures to tackle the existing legal gaps. Further, this article calls for a balanced sanction system through comparative analysis with international jurisdictions instead of opting for an extreme legal punishment/remedy.
Judicial Trends
Before the introduction of BNS, such matters were dealt with as ‘rape’ and charged under Section 375 IPC, highlighting the gravity of the offence and often resulting in over-criminalised punishment. Section 90 of the IPC directly dealt with consent gained under the ‘misconception of fact’ as invalid. Therefore, a settled legal position was Section 375 read along with Section 90 of the IPC, resulting in criminalisation of consensual sex done under a false promise of marriage.
A BBC report suggests that more than 10000 cases where consent was based on a promise of marriage and deceit is shown but the low conviction rates raise an alarming argument, making it difficult to distinguish genuine instances from exploitative deceit. The low conviction rate suggests that various recorded instances collapse during trial and other processes, burdening the judiciary as well as the accused with frivolous litigation, ultimately questioning the application of criminal laws in intimate relationships turning sour. Justice Pratibha Rani in Geeta Sharma v. State (NCT of Delhi) raised concern regarding the weaponisation of law when a relationship turn sour, reflects judicial unease with the over-criminalisation of this provision.[i] An observation made by the Calcutta High Court also highlights the adult responsibility and formal autonomy model, presuming that all adults freely evaluate the risks of intimacy. While the Indian society ties a woman’s marriageability to her sexual chastity, a promise of marriage may operate less as a free choice and more as a coercive lever.
Ultimately, the Supreme Court settled the legal position in Mahesh Damu Khare v. State of Maharashtra, and stated that in order to arouse any criminal liability, any physical relationship must be traced directly to the false promise. The court also affirmed that women are capable to maintaining physical relationships without insisting on creating marital ties. The Supreme Court observed that unless a direct nexus can be established a false promise to marriage and a prolonged physical relationship, it cannot be considered under ‘misconception of fact’. Further, a clarification was given stating that even if the initial motive during the inception of a physical relationship was to marry, there are times where such position would shift and unless an initial intention to deceive is established, it cannot attract criminal liability under Section 375 read with Section 90 of the Indian Penal Code, concluding that a prolonged continuation without any resistance by the female partner severs the criminal culpability and neutralises it. The court held that a mere breakdown of a relationship over time cannot amount to obtaining sexual intercourse on the pretext of marriage. The court also reinforced the belief that this provision often attracts personal vendetta against the accused instead of genuine instances.
Bodily Autonomy and Internalised Misogyny
The right to sexual autonomy flows directly from the golden triangle of fundamental rights, Article 14,19 & 21. Reliance can be placed on Kharak Singh v. State of Uttar Pradesh and Maneka Gandhi v. Union of India, where the Supreme Court expanded the scope of personal liberty, ultimately culminating in Justice K.S Puttaswamy v. Union of India where privacy and decisional autonomy was affirmed. This golden triangle, read with notable cases like Navtej Singh Johar v. Union of India and Joseph Shine v. Union of India, reinforces the notion that adult consensual relationships fall under the ambit of protection under constitutional rights.
Section 69 on the other hand, softly reinforces a patriarchal notion by infantilising women by presuming their lack of informed decisions regarding pre-marital relationships. Such paternalism undermines the principle of equality under Article 14 and perpetuates stereotypes inconsistent with Anuj Garg v. Hotel Association of India, where the Court struck down protective but discriminatory provisions. At the same time, the risk of weaponisation cannot be ignored. Litigation in such cases is protracted, bail is difficult, and social stigma is immediate. A constitutionally viable provision must therefore balance bodily autonomy with safeguards against harassment of the accused
Stakes for the Parties
As of now, Section 69 classifies ‘sex on false promise of marriage’ as a cognisable, non-bailable and heinous offence carrying up to ten years of imprisonment and fine at the discretion of the court. This creates a situation of the accused facing immediate incarceration and reversal of the presumption of innocence, while complainants must navigate a system where prolonged trails hardly provide timely relief to the parties. From a feminist perspective, this framework undermines women’s agency by treating them as incapable of giving consent outside marriage and silences male and LGBTQ+ victims who fall outside the provision’s gendered scope. This asymmetry creates a paradox of ‘reverse sexism’ and violates equality before the law.
Mumbai-based Sr. lawyer and women’s rights activist Flavia Agnes also stresses the need to soften the punishment system instead of going through the extreme measures of completely severing the laws. She suggests a mixed structure of civil and criminal remedies to be available to deceived women, which would include maintenance and mild punishment to perpetrators instead of completely considering this offence as ‘rape’. Such one-sided legal recognition not only risks creating biased protections but also leaves male and LGBTQ+ victims without remedies in comparable circumstances.
Therefore, it can be agreed that the stakes are high for both parties. An over-criminalised provision is neither deterring deceit nor protecting individual autonomy, ultimately requiring a balanced framework to ensure that law functions as a shield and not as a sword.
Need of the Hour
It is contended that removal of Section 69 is not going to dispense justice, however, following a proportional approach by implementing clear legislations and liberal interpretations would result in a balanced framework. Through various judicial pronouncements, irregularities have been spotted in Section 69 of the BNS, which demand the following policy reforms.
De-gendering the provision and promoting inclusivity by adding men and people from LGBTQ+ sect is important to cover all the victims under the said proviso. Reliance can be placed on the UK’s Sexual Offences Act, 2003, where ‘person’ has been emphasised instead of a single gender, ultimately enabling the legal machinery for the vulnerable regardless of their gender.
Grading the offences appear to be another form through which multiple grades would be set up regarding the gravity of the offence committed. A clear distinction made between an isolated deceitful promise against a prolonged coercive promise would determine the liability allocation for the offence, resulting in a different classification of the offence depending on its heinousness.
Allocation of hybrid remedies, plea bargaining, and mild criminal sanctions is one such manner that could be applied to make the trial stages smoother, owing to the low conviction rates, ultimately reducing the pendency on the courts as well as providing an exit to the parties.
Conclusion
It is essential to specify that Section 69 is not only a cognisable and non-bailable offence but also considered as a heinous natured crime. The burden of proof is also shifted to the accused here and there are hardly any remedies available to the accused. With the current condition of court under trial pendency, it is reasonably expected to take months if not years, for innocent individuals who are often subjected to this. This section punishes the offender with a maximum sentence of ten years while also adding a liability to fine. However, from a feminist lens, it also portrays women as mentally inferior beings, raising questions about internalized misogyny hidden within the provisions of law. By applying the above policy measures, this issue can be curbed. Such restructuring will also align India’s criminal legal system with international standards, reinforcing holistic growth instead of redundancy.
(This post has been authored by Ojas Sharma, third-year student at MNLU, Nagpur)
CITE AS: Ojas Sharma ‘CONSENT, DECEIT, AND THE LAW- REIMAGINING SECTION 69 OF BNS’ (The Contemporary Law Forum, 2 November 2025) <https://tclf.in/2025/11/02/consent-deceit-and-the-law-reimagining-section-69-of-bns/>date of access.