The "Kundli" Conundrum: How Section 69 BNS is Weaponizing Bad Breakups

The Criminalization of the Modern Breakup

When the Bharatiya Nyaya Sanhita (BNS) replaced the Indian Penal Code, the introduction of Section 69 was heralded by some as a necessary statutory clarification, and feared by defense lawyers as a Pandora’s box. Early 2026 jurisprudence has confirmed our worst fears: the box is wide open, and the courts are refusing to shut it.

For decades under the IPC regime, prosecuting a "false promise of marriage" meant navigating the grueling evidentiary tightrope of Section 90 (consent given under a misconception of fact) read with Section 375 (rape). The Supreme Court, most notably in Pramod Suryabhan Pawar v. State of Maharashtra (2019), drew a vital line in the sand: there is a fundamental difference between a promise that was false from its inception, and a genuine promise that was simply breached due to subsequent circumstances.

Section 69 BNS severed this offense from the traditional rape provisions, creating a distinct crime for sexual intercourse employed through "deceitful means"—explicitly including the false promise of employment, promotion, or marriage. But in doing so, it handed a loaded weapon to the FIR machinery. Recent rulings from the Allahabad and Delhi High Courts show exactly how this provision is blurring the line between criminal deceit and a relationship merely going sour.

Astrology as a Criminal Offense?

On February 24, 2026, the Delhi High Court delivered a deeply unsettling order. The Court held that refusing marriage due to a "kundli" (horoscope) mismatch—after engaging in physical relations and offering repeated assurances of marriage—attracts Section 69 of the BNS.

"By treating a post-facto cultural hurdle like a Kundli mismatch as evidence of 'deceitful means,' the Court is effectively criminalizing astrological incompatibility."

This is a dangerous legal slippery slope. In the Indian social fabric, marriages are frequently called off due to familial opposition, caste dynamics, or astrological mismatches. While morally reprehensible to lead a partner on, converting these standard societal hurdles into a criminal offense punishable by up to 10 years in prison is a gross overreach of penal law.

Similarly, on January 13, 2026, the Allahabad High Court refused to quash proceedings under Section 69 BNS. The bench, led by Justice Avnish Saxena, held that the FIR disclosed a distinct offense even if the acts did not amount to traditional rape. While the Court rightly noted that quashing is only permissible pre-trial if "dishonest intent from inception is absent," the practical reality for defense counsel is grim: trial courts are notoriously hesitant to infer a "lack of bad intent" at the Section 230 BNSS (framing of charge) stage.

The Procedural Nightmare: Where Section 35(3) BNSS Fails You

Why does this matter so much for the practicing advocate? It comes down to the power of arrest.

On February 7, 2026, the Supreme Court ruled that issuing a notice of appearance under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS)—the new avatar of the beloved Section 41A CrPC—is mandatory before arresting someone for offenses punishable by up to 7 years' imprisonment. The Court codified the Arnesh Kumar guidelines, clarifying that unless specific conditions under Section 35(1)(b) exist (like preventing tampering of evidence or further offenses), the police cannot arrest routinely.

But here is the catch that defense lawyers need to internalize immediately: Section 69 of the BNS carries a maximum punishment of up to 10 years.

Because the punishment exceeds the 7-year threshold, the mandatory notice protection of Section 35(3) BNSS does not strictly apply. The police retain discretionary, immediate arrest powers under Section 35(1) BNSS for Section 69 offenses. You cannot simply walk into the local station and demand a 35(3) notice as a matter of right when your client is accused of breaking off an engagement after a physical relationship. The threat of immediate, carceral state intervention is highly potent.

While the Supreme Court has recently clamped down on routine handcuffing, stating that Section 43(3) BNSS cannot override Articles 21 and 22 without recorded justification, the reality of a Section 69 BNS arrest remains devastating for the accused.

The Way Forward for the Defense Bar

The transition from IPC to BNS was supposed to modernize our criminal justice system. Instead, regarding consensual relationships, we are witnessing a regression. By legislating "deceitful means" without strictly defining the temporal requirement of intent in the statute itself, the State has left the door open for jilted partners to use the police as an instrument of vengeance.

For defense lawyers, the strategy must pivot. You can no longer rely on the old defense that "it doesn't amount to rape under Section 375." Section 69 is a distinct beast.

When drafting Section 528 BNSS (quashing) petitions or anticipatory bail applications under Section 482 BNSS, the entire focus must be on establishing a timeline of genuine intent. Produce WhatsApp chats, ring receipts, family meeting records, or emails that prove the accused intended to marry at the time of the physical relationship, and that the "Kundli mismatch" or family objection emerged as a genuine, subsequent impossibility rather than a premeditated excuse.

Until the Supreme Court steps in to categorically limit the interpretation of "deceitful means" under Section 69 BNS, lawyers must prepare to fight tooth and nail for clients whose only real crime was a messy breakup.