Kundli Mismatches and Repugnancy: How Courts are weaponizing S.69 BNS and enforcing Default Bail under BNSS

The honeymoon period for the new criminal laws is officially over. As we navigate the first quarter of 2026, the constitutional courts have stopped treating the Bharatiya Nyaya Sanhita (BNS) and the Bharatiya Nagarik Suraksha Sanhita (BNSS) as mere re-numbering exercises. The jurisprudential rubber has hit the road, and the early rulings expose serious friction points—particularly regarding sexual offenses under the BNS and procedural limits under the BNSS.

For practicing lawyers, the latest wave of High Court and Supreme Court decisions signals a fundamental shift in how we must draft quashing petitions and argue default bail. Relying on old CrPC and IPC precedents will now get your brief tossed out.

Section 69 BNS: The "Kundli" Conundrum and the Death of Casual Dating?

One of the most heavily debated additions to the new penal code was Section 69 of the BNS, which explicitly criminalizes sexual intercourse by deceitful means—including the false promise of marriage. Under the old regime, this was clunkily shoehorned into Rape (Section 375 IPC) read with Section 90 (consent given under misconception of fact). Section 69 BNS carves it out as a distinct offense, punishable by up to 10 years, clarifying that such an act "does not amount to the offense of rape."

Legislative intent suggested this would prevent the harshness of a rape charge when relationships genuinely fail. However, early 2026 rulings show High Courts are interpreting Section 69 so broadly that it is becoming a terrifying weapon for the prosecution.

In a deeply problematic ruling on February 24, 2026, the Delhi High Court held that refusing marriage due to a "Kundli (horoscope) mismatch" after physical relations and repeated assurances attracts Section 69 BNS. Let that sink in. A cultural, post-facto reason to break an engagement is now being viewed as evidence of ab initio deceit.

Similarly, the Allahabad High Court in Kuldeep Verma v. State of U.P. (Jan 13, 2026) flatly refused to quash a Section 69 FIR, noting that allegations of false promises in the FIR disclosed a prima facie offense.

"The threshold for quashing Section 69 BNS proceedings under Section 528 BNSS (formerly 482 CrPC) is proving to be incredibly high. Courts are treating the mere allegation of 'repeated assurances' followed by a breakup as sufficient to warrant a full trial."

Practice Note: Defense counsel can no longer rely on old Supreme Court judgments (like Pramod Suryabhan Pawar or Sonu @ Subhash Kumar) which easily distinguished a "breach of promise" from a "false promise." Under Section 69 BNS, the burden has practically shifted to the accused to prove at trial that they intended to marry at the time of intimacy. If you are defending a Section 69 case, you must immediately secure digital evidence (WhatsApp chats, emails) demonstrating genuine efforts to marry to rebut the presumption of deceit at the bail stage itself.

S.187 BNSS: Orissa High Court Strikes Down State Mischief on Default Bail

While the BNS expands substantive liability, the BNSS is demonstrating sharp teeth against state overreach. A landmark ruling by the Orissa High Court has sent shockwaves through state police departments regarding default bail timelines.

Under the old Section 167 CrPC, several states (including Orissa) passed state amendments extending the maximum period of pre-chargesheet custody from 90 days to 120 days or more for specific offenses. The Orissa High Court has now ruled that Section 187(3)(i) BNSS strictly caps the default bail limit at 90 days, effectively holding that the new central legislation repeals those older state amendments through the doctrine of implied repeal.

Why this matters: This is a massive victory for personal liberty. The BNSS has hit the reset button on procedural timelines.

Practice Note: Every criminal defense lawyer needs to audit their dockets today. If you have a client languishing in custody past day 90 under the guise of an old state amendment to the CrPC, draft a default bail application under Section 187 BNSS immediately. The statutory right to default bail is indefeasible, and the courts are strictly enforcing the BNSS timelines.

Supreme Court Steps In: The Repugnancy Battle over Organized Crime

The most consequential constitutional battle of 2026 is brewing in the Supreme Court. In Siraj Ahmad Khan v. State of UP, the Court has issued notice to Uttar Pradesh to examine the repugnancy between the UP Gangsters Act and Section 111 of the BNS.

For decades, states enacted their own draconian laws (MCOCA, UP Gangsters Act, GUJCOCA) because the IPC lacked a specific provision for "organized crime." Section 111 BNS now occupies this legislative field at the central level. If the Supreme Court rules that Section 111 BNS renders state acts repugnant under Article 254 of the Constitution, thousands of FIRs under state gangster acts could collapse overnight.

We are watching the rapid obsolescence of state-level criminal fiefdoms. The new Sanhitas are centralizing criminal jurisprudence. Litigators must stop operating on autopilot. The old CrPC/IPC muscle memory is now a liability—it is time to master the Sanhitas.