Delhi HC Tests BNS Section 69 On Deceitful Sex

Introduction

A recent decision of the Delhi High Court, refusing bail to a man accused of repeatedly establishing sexual relations on the assurance of marriage and then backing out on the ground of a “kundali mismatch”, marks one of the early judicial engagements with Section 69 of the Bharatiya Nyaya Sanhita 2023 (BNS). According to press reports, the complainant alleges that the accused promised marriage in 2018, reinforced this assurance over several years while engaging in physical intimacy, and ultimately withdrew on a ground that directly contradicted his earlier stance on horoscope compatibility. At the bail stage, the Court held that such a pattern of conduct may prima facie attract Section 69 BNS. The order is significant not only because it applies the new code, but also because it sits at the intersection of sexual autonomy, deception, and the criminalisation of failed relationships.

Legal Background

Under the pre‑BNS regime, allegations that sexual intercourse had been obtained on a false promise of marriage were typically pursued either as rape under Sections 375–376 of the Indian Penal Code (IPC), using Section 90 IPC (consent obtained under a “misconception of fact”), or as cheating under Section 417 IPC. The Supreme Court developed a substantial body of jurisprudence around such cases.

In Pramod Suryabhan Pawar v State of Maharashtra (2019) 9 SCC 608 the Court held that a distinction must be drawn between a mere breach of a promise made in good faith, and a false promise made from the outset without any intention to marry. Only the latter vitiates consent under Section 90 IPC. Similar reasoning appears in Deepak Gulati v State of Haryana (2013) 7 SCC 675, Uday v State of Karnataka (2003) 4 SCC 46 and Anurag Soni v State of Chhattisgarh AIR 2019 SC 1857, where the Court emphasised that to convert consensual intimacy into rape, the prosecution must show that the accused never intended to honour his promise and that the promise was a decisive factor in the woman’s decision to consent.

The BNS, which has replaced the IPC, has re‑structured this area. Section 69 creates a distinct offence of sexual intercourse obtained by deceitful means. While the exact statutory language is broader, it expressly covers intercourse procured by deception such as a false promise of marriage, misrepresentation of identity or false assurances of employment or promotion. The new provision thereby removes the need to fit every such case into the narrow definition of rape, while still treating deceit‑based sexual exploitation as a serious criminal wrong.

Critical Analysis

On the limited description available in the press, the Delhi High Court was confronted with a long‑term relationship in which the complainant alleges that:

• the accused promised marriage around 2018; • this promise was periodically reiterated as the parties continued an intimate relationship over several years; and • he ultimately refused to marry her, citing an astrological “kundali mismatch”, although he had allegedly earlier dismissed horoscope concerns as irrelevant.

Where details are not in the public domain, they must be treated as hypothetical for the purposes of analysis. Nonetheless, the Court’s reasoning as reported—that a promise repeatedly reinforced and later withdrawn on a contradictory pretext may prima facie fall within Section 69—deserves careful scrutiny.

Under the old IPC framework, the Supreme Court repeatedly cautioned against criminalising ordinary relationship breakdowns. In Pramod Pawar, the Court quashed an FIR where the parties had been in a consensual relationship for years, were aware of social and familial obstacles, and continued intimacy even after marriage became contentious. The Court stressed that the complainant’s own conduct showed that the promise of marriage was not the sole or proximate cause of her consent.

Section 69 BNS, however, does not require the prosecution to stretch the concept of “rape” or to rely on Section 90 IPC. It targets deceit in obtaining sexual access. The core enquiry now shifts from whether the intercourse amounted to rape, to whether the accused acted with dishonest or fraudulent intent when inducing consent at the material time. A pattern in which a man assures a woman that marriage is certain, encourages continuing sexual relations on that footing, and then abruptly invokes “kundali mismatch” having previously minimised or denied that issue, arguably evidences deceit rather than a sincere but ultimately frustrated intention to marry.

At the bail stage, the Court is not determining guilt but assessing whether there is a credible prima facie case, the seriousness of the allegation, and the likelihood of the accused interfering with the investigation or intimidating the complainant. The Delhi High Court appears to have reasoned that: (i) the allegations, taken at face value, fit the mischief of Section 69; (ii) the new provision reflects legislative concern about systemic exploitation under the garb of romantic relationships; and (iii) custodial interrogation or at least denial of anticipatory bail may be warranted, particularly where there is a risk of pressure on the complainant.

At the same time, the analytical challenge remains to distinguish between (a) deceitful conduct justifying criminal sanction and (b) a genuine change of heart, external compulsion, or family pressure leading to a broken engagement. The language and reasoning of the Supreme Court in cases such as Deepak Gulati and Uday—insisting on proof that the promise was false at inception, or became false at the time further sexual access was obtained—will continue to be relevant benchmarks, even though the offence has moved from the rape provision to Section 69 BNS.

Opinion & Outlook

From a doctrinal perspective, the Delhi High Court’s approach is defensible as an application of long‑standing principles on deception and consent to the new statutory framework. Section 69 BNS represents a legislative choice to criminalise deceitful sexual intercourse as a distinct offence, rather than forcing courts to stretch the definition of rape. The Court’s observation that a repeatedly reinforced promise, later withdrawn on a contradictory pretext, may constitute prima facie deceit is consistent with the idea that the criminal law should intervene where a woman’s sexual autonomy is systematically manipulated.

Nevertheless, there are real risks of over‑extension. Romantic relationships often involve aspirations and assurances that are sincerely made but later defeated by evolving circumstances—familial opposition, economic constraints, or personal incompatibility. If every failure to marry after a relationship of some duration is treated as presumptively criminal, the law would slide towards policing private morality rather than protecting against exploitation. Future decisions under Section 69 should therefore adopt structured tests, such as:

• requiring clear material (messages, contemporaneous conduct) that the accused either never intended to marry, or had decisively changed his mind while continuing to obtain sexual access on the false assurance that marriage would occur; and • insisting on a proximate causal link between the deception and the decision to consent, rather than treating long‑term consensual intimacy as automatically vitiated.

It is also likely that questions of retroactivity and overlap will arise where alleged conduct straddles the IPC–BNS transition period. Higher courts may need to clarify how Section 69 interacts with existing jurisprudence under the IPC, and whether the new offence is to be treated as clarificatory or as introducing a substantively different threshold.

Conclusion

The Delhi High Court’s refusal of bail in the “kundali mismatch” case signals that courts are prepared to use Section 69 BNS robustly where they discern a pattern of deceit in obtaining sexual consent. Properly applied, the provision can close a gap in the law by recognising deceit‑based sexual exploitation without conflating every failed relationship with rape. The challenge going forward will be to draw principled lines—grounded in evidence of dishonest intent and causal influence on consent—so that criminal law protects sexual autonomy without becoming an instrument for litigating ordinary disappointments in intimate life.