Introduction
Sexual offences occupy a particularly sensitive position within criminal law because they involve bodily autonomy, dignity, privacy, equality and personal liberty. The criminal justice system is required to provide effective protection against sexual violence while ensuring that criminal law does not become a mechanism for regulating ordinary adult relationships. The challenge becomes more complex where sexual relations occur in the context of a promise of marriage and the relationship subsequently breaks down.
The Bharatiya Nyaya Sanhita, 2023 (BNS) marks a major transition in Indian criminal law. It replaces the Indian Penal Code, 1860 (IPC) and introduces a revised statutory framework for offences, punishments and certain forms of criminal conduct.1 The law retains the principal offences relating to rape and sexual violence while also creating a distinct offence dealing with sexual intercourse through deceitful means or a promise to marry without an intention to fulfil the promise.
Section 69 is particularly important because it occupies a legal space between ordinary consensual relationships and rape. It provides that whoever, by deceitful means or by making a promise to marry a woman without any intention of fulfilling it, has sexual intercourse with her, such intercourse not amounting to rape, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.2 The statutory Explanation includes within the expression “deceitful means” an inducement for, or a false promise of, employment or promotion, or marrying by suppressing identity.3
The provision reflects an attempt by Parliament to respond to situations in which consent is allegedly obtained through deception. However, the existence of a promise to marry cannot by itself establish criminal liability. Adult relationships may end for numerous reasons. A person may genuinely intend to marry at the beginning of a relationship but later be unable to do so because of family circumstances, incompatibility, financial difficulties, personal decisions or other intervening events.
The Supreme Court’s jurisprudence before the BNS provides an important interpretative background. In Pramod Suryabhan Pawar v. State of Maharashtra, the Court emphasised that a promise of marriage must be shown to have been false from the beginning and that the promise must have had a direct bearing on the woman’s decision to consent to sexual relations.4
Therefore, the central issue is not merely whether marriage was promised or whether the relationship eventually failed. The more important question is whether the accused deliberately used a false representation or deceptive promise to obtain sexual relations and whether the statutory requirements of the offence are established.
Research problem
The principal research problem arises from the difficulty of determining when a sexual relationship based on a promise of marriage crosses the boundary from consensual intimacy into criminal deception.
The introduction of Section 69 BNS provides a specific statutory basis for prosecuting certain deceptive sexual relationships. However, its interpretation presents difficult questions. The provision refers to a promise to marry made “without any intention of fulfilling the same.”5 Determining the mental state of a person at the time the promise was made can be challenging because intention is generally established through surrounding circumstances and subsequent conduct.
Another difficulty arises from the distinction between Section 69 and rape. Where consent is legally vitiated and the ingredients of rape are satisfied, the case must be treated under the applicable rape provisions. Where the conduct does not amount to rape but falls within the specific statutory requirements of Section 69, the new offence may apply. This creates a need for careful classification.
There is also a risk that every failed relationship involving a promise of marriage could be presented as a criminal case. Such an approach could undermine the principle of voluntary adult relationships and attach excessive criminal consequences to ordinary relationship disputes. At the same time, an excessively narrow interpretation could make it difficult for women who have genuinely been deceived to obtain effective legal protection.
The research problem therefore concerns the creation of an appropriate balance between protection from sexual exploitation and protection of individual autonomy.
Research questions
The study addresses the following questions:
1. How has the Bharatiya Nyaya Sanhita, 2023 changed the legal framework governing sexual offences?
2. How should consent be understood in cases involving a promise of marriage?
3. What constitutes a false promise of marriage under Section 69 BNS?
4. How can courts distinguish a deliberately false promise from a genuine promise that subsequently fails?
5. What evidentiary challenges arise in prosecuting offences involving deceptive sexual relationships?
6. Does Section 69 adequately protect women while preserving the constitutional rights of accused persons?
7. What safeguards are necessary to prevent both under-criminalisation and over-criminalisation?
Objectives of the study
The primary objective of this study is to examine the criminalisation of sexual offences under the Bharatiya Nyaya Sanhita, 2023, with particular emphasis on consent and deceptive promises of marriage.
The study further seeks to analyse Section 69 BNS and determine its relationship with the traditional law of rape and consent. It examines judicial principles developed under the IPC and considers their relevance to the interpretation of the new statutory provision.
Another objective is to identify practical difficulties faced by victims, investigators, prosecutors and courts in determining whether an alleged promise of marriage was false from its inception.
The study also seeks to examine the constitutional balance between women’s right to dignity and protection from exploitation and the accused’s rights to personal liberty, fair procedure and the presumption of innocence.
Finally, the research proposes safeguards for the consistent and fair application of the new law.
Research methodology
This research adopts a doctrinal and analytical methodology. Primary legal sources include the Bharatiya Nyaya Sanhita, 2023, the Constitution of India and relevant judicial decisions of the Supreme Court of India.
Secondary sources include books, legal commentaries, academic articles, legislative materials and research publications dealing with sexual offences, consent, gender justice and criminal law reform.
The study primarily examines statutory interpretation and judicial reasoning. Previous Supreme Court decisions concerning false promises of marriage are used to identify principles that may assist courts in interpreting Section 69 BNS.
The research is qualitative in nature and does not rely upon statistical or empirical field research. The principal emphasis is on understanding the legal framework, identifying emerging constitutional and evidentiary concerns and developing recommendations for effective implementation.
Evolution of sexual offences: from the IPC to the BNS
The Indian Penal Code, 1860 constituted the principal substantive criminal law of India for more than 160 years.6 Its provisions concerning rape, sexual harassment, assault and other offences against women evolved significantly through legislative amendments and judicial interpretation.
The law relating to sexual offences underwent substantial changes following public concern over sexual violence and the recommendations of various committees. Judicial decisions also expanded the understanding of consent, dignity and bodily autonomy.
The Bharatiya Nyaya Sanhita replaces the IPC with a contemporary criminal law framework. The statutory treatment of sexual offences continues to recognise rape as a serious offence, while the BNS separately addresses certain forms of deceptive sexual conduct.
Section 69 is particularly significant because it expressly addresses sexual intercourse obtained through deceitful means or a promise to marry without an intention to fulfil the promise. The statutory formulation distinguishes this conduct from rape by expressly stating that the sexual intercourse contemplated by the provision is intercourse “not amounting to the offence of rape.”7
This legislative approach demonstrates an attempt to recognise deceptive sexual conduct as a distinct category. It also creates a new interpretative responsibility for courts, because the provision must be applied without blurring the distinction between deception and ordinary relationship failure.
Constitutional framework for protection of women
The Constitution provides the foundational framework for the protection of women against discrimination, violence and exploitation.
Article 14 guarantees equality before the law and the equal protection of the laws. Article 15 prohibits discrimination on specified grounds and permits special provisions for women and children. Article 21 protects life and personal liberty8 and has been interpreted by the Supreme Court to include dignity, privacy and bodily autonomy.9
The constitutional protection of women therefore extends beyond physical safety. A woman’s ability to make autonomous decisions concerning her body and personal relationships forms part of her individual dignity.
At the same time, constitutional protection applies to accused persons. Criminal law must operate through fair procedure, and a person accused of an offence remains entitled to legal safeguards until guilt is established according to law.
The constitutional framework consequently requires a balanced approach. Protecting women does not require abandoning due process, while due process does not justify ignoring genuine sexual exploitation.
Rape and sexual offences under the Bharatiya Nyaya Sanhita, 2023
The BNS retains a detailed statutory framework concerning rape and aggravated sexual offences. Section 63 defines rape, while the provisions that follow prescribe punishment for rape and for aggravated forms of sexual violence.10
The statutory scheme recognises that consent is central to determining whether particular sexual conduct constitutes rape. The law also provides heightened protection to minors and identifies aggravated circumstances.11
Section 69 is distinct from the rape provisions. It applies where sexual intercourse is obtained through deceitful means or a promise to marry without the intention of fulfilling it, but the conduct does not amount to rape. The offence is punishable with imprisonment of either description for a term which may extend to ten years, and the offender is also liable to fine.
This distinction is legally significant. A prosecution under Section 69 should not automatically be converted into a rape prosecution merely because a relationship involved a promise of marriage. Conversely, the existence of Section 69 should not be used to avoid the application of the rape provisions where the statutory ingredients of rape are actually satisfied.
The classification must depend upon the facts, the evidence and the statutory requirements of the particular offence.
Concept of consent under the BNS
Consent is one of the most important concepts in the law of sexual offences. Genuine consent requires voluntary participation in the sexual act. Consent cannot be understood merely as the absence of physical resistance.12
The legal concept of consent must account for the circumstances in which the decision was made. Deception, coercion, threats or legally recognised misconceptions may affect the validity of consent.13
However, adult autonomy also requires recognition of a person’s ability to make personal choices. A woman who voluntarily enters a relationship does not lose her legal autonomy merely because the relationship subsequently ends.
The Supreme Court has repeatedly considered the relationship between consent and a promise of marriage. In Pramod Suryabhan Pawar, the Court explained that the promise must have been false from the beginning and made in bad faith, and that the false promise must have had a direct bearing on the woman’s decision to engage in sexual relations.14
The same principle has been reaffirmed in subsequent decisions.15 The Supreme Court has distinguished a genuinely consensual relationship that later becomes unsuccessful from a relationship initiated through deliberate deception.
Consent obtained by deception and false promise of marriage
The concept of a false promise of marriage has developed significantly through Indian judicial decisions.16
A promise of marriage becomes legally significant in criminal law when it is alleged that the accused never intended to fulfil the promise and deliberately used it as a means to obtain sexual relations.
The crucial factor is therefore the intention existing when the promise was made. If a person genuinely intended to marry but subsequently changed their decision, the mere failure to marry should not automatically establish that the original promise was false.
The Supreme Court’s jurisprudence provides an important distinction. In Pramod Suryabhan Pawar, the Court stated that the promise must have been false, given in bad faith and without the intention of being honoured when made. It must also have directly influenced the woman’s decision to consent.17
Section 69 BNS gives statutory recognition to this concern by requiring that the promise to marry be made without any intention of fulfilling it.
The provision therefore focuses on deliberate deception rather than the mere existence of a failed relationship.
False promise of marriage: criminality and evidentiary challenges
The principal evidentiary challenge in these cases concerns proof of intention.
Intention is a mental element and ordinarily cannot be established through direct evidence. Courts must therefore consider circumstances such as the representations made by the accused, conduct before and after the promise, communications between the parties, surrounding circumstances, knowledge of existing impediments to marriage and the overall nature of the relationship.
However, subsequent conduct should not automatically be treated as conclusive proof of earlier dishonest intention. A relationship may fail because of events that were genuinely unforeseen when the promise was made.
For example, family opposition, financial circumstances, incompatibility, the discovery of serious differences or other intervening circumstances may result in a genuine promise being abandoned. Such circumstances cannot automatically establish that the promise was dishonest from its inception.
The Supreme Court has consistently emphasised this distinction. A recent Supreme Court decision reiterated that merely establishing a physical relationship on the basis of a promise to marry does not automatically establish rape; the prosecution must satisfy the relevant legal requirements concerning the falsity of the promise and its connection with the consent.18
The same reasoning is highly relevant to Section 69 BNS.
Distinction between rape, deception and breach of promise
One of the most important legal challenges under the BNS is maintaining a clear distinction between three different situations.
The first is genuine sexual violence where consent is absent or legally invalid. Such conduct must be dealt with under the applicable rape provisions.
The second is deliberate deception where sexual intercourse is obtained through a promise to marry that the accused never intended to fulfil. Where the conduct does not amount to rape, Section 69 may become applicable.
The third is a consensual relationship in which marriage was discussed or promised but subsequently did not take place because of changed circumstances or relationship breakdown. Such conduct should not automatically be converted into a criminal offence.
The distinction protects both women and the integrity of criminal law. Treating every broken promise as criminal deception would unnecessarily expand criminal liability. Conversely, treating all allegations as ordinary relationship disputes could fail to protect victims of genuine deception.
The legal inquiry must therefore focus on the circumstances existing when the promise was made and the causal relationship between the promise and the decision to engage in sexual relations.
Protection of women and gender justice
The criminal law has an important role in protecting women from sexual exploitation. Women may be particularly vulnerable where deception involves emotional manipulation, economic dependence, social pressure or promises concerning marriage and employment.
Section 69 recognises that deception can operate as a means of obtaining sexual relations even where the facts do not satisfy the traditional ingredients of rape. Its introduction can therefore be understood as an attempt to fill a perceived gap in criminal protection.
However, gender justice should not be understood solely through increased criminalisation. Effective protection also requires sensitive investigation, access to legal assistance, victim-friendly procedures, protection of privacy and timely adjudication.
The criminal justice system should avoid stereotypical assumptions about women’s behaviour. A victim’s decision to continue communicating with the accused, to meet the accused after an alleged incident or to remain in a relationship should not by itself determine whether deception occurred.
At the same time, courts must evaluate evidence objectively and avoid replacing legal proof with moral assumptions.
Role of mens rea in sexual offences
Mens rea plays an important role in determining criminal responsibility under Section 69.
The language of the provision expressly refers to a promise to marry made without any intention of fulfilling it. This indicates that the accused’s intention at the time of making the promise is central to liability.
The distinction is important because criminal law should generally punish culpable conduct rather than ordinary misfortune or personal disappointment.
The prosecution must therefore establish the relevant dishonest intention through legally admissible evidence. The mere fact that marriage did not occur cannot by itself establish the necessary mental element.
This principle also protects against the retrospective criminalisation of relationship decisions. A person should not ordinarily become criminally liable merely because a relationship that once appeared genuine later failed.
Evidentiary and investigative challenges
The investigation of sexual offences involving promises of marriage presents unique difficulties. Evidence may include text messages, emails, social-media communications, call records, photographs, travel records, financial transactions and statements of the parties.
Digital evidence can be particularly important because communications may demonstrate what representations were actually made and the context in which they were made.
However, investigators must maintain evidentiary integrity and comply with applicable procedural and evidentiary requirements.19 Digital communications should not be selectively presented in a manner that removes relevant context.
Investigators should also examine evidence that may support or contradict the allegation. An investigation must not begin with the assumption that either party is automatically truthful.
The use of electronic evidence also raises privacy concerns. The collection of personal communications must be legally authorised and proportionate to the investigation.20
Constitutional rights of the accused and the victim
The constitutional framework requires the protection of both victims and accused persons.
For women alleging sexual exploitation, Articles 14 and 21 support equality, dignity, bodily autonomy and access to justice. Criminal law must provide meaningful protection against sexual violence and deliberate deception.
For accused persons, Article 21 requires that any deprivation of personal liberty follow a fair, just and reasonable procedure.21 The criminal process must therefore respect the presumption of innocence, procedural safeguards and the right to a fair trial.
The balancing exercise is particularly important because allegations of sexual offences carry serious social consequences even before trial. Investigative authorities and media institutions must therefore respect statutory restrictions concerning disclosure of the identity of victims and other applicable safeguards.
The BNS itself contains a provision restricting disclosure of the identity of victims of specified sexual offences. Section 72 provides punishment for printing or publishing any matter that may make known the identity of a victim in circumstances covered by the provision, subject to specified exceptions.22
Judicial approach to consent and promise of marriage
Indian courts have developed several important principles concerning false promises of marriage.
In Uday v. State of Karnataka, the Supreme Court considered the relationship between a promise of marriage and consent.23
In Deepak Gulati v. State of Haryana, the Court emphasised the distinction between a false promise and a genuine relationship that subsequently fails.24
In Pramod Suryabhan Pawar v. State of Maharashtra, the Supreme Court articulated a particularly important two-part approach: the promise must have been false from the beginning, and the false promise must have directly influenced the woman’s decision to engage in sexual relations.25
In Mahesh Damu Khare v. State of Maharashtra, the Supreme Court again considered the distinction between a false promise and a consensual relationship.26
Recent Supreme Court decisions continue to apply this principle. A 2025 decision observed that a prosecution based on a promise of marriage requires examination of whether the promise was made without the intention of fulfilment from the beginning and whether it directly influenced consent.27
The Supreme Court has therefore maintained an important distinction between deliberate deception and relationships that subsequently become unsuccessful.
Critical analysis and findings
The BNS represents an important development in the statutory treatment of sexual offences. Section 69 recognises a specific form of deceptive sexual conduct that previously had to be addressed through existing legal provisions and judicial interpretation.
One strength of the provision is its attempt to address conduct that may not technically satisfy the definition of rape but may nevertheless involve serious deception. The provision also recognises forms of deceit beyond marriage, including certain employment-related inducements and marriage by suppression of identity.
At the same time, the provision presents interpretative difficulties. The expression “deceitful means” is broad, and its application will depend significantly upon judicial interpretation. The phrase “without any intention of fulfilling the same” requires courts to determine the accused’s state of mind at the time the promise was made.
A further concern is the possibility of criminal proceedings arising from relationship disputes. Criminal law should not become a substitute for resolving every unsuccessful romantic relationship.
The research finds that the distinction between a false promise and a genuine promise that later fails must remain central. This distinction is supported by Supreme Court jurisprudence developed under the earlier law and is particularly relevant to the interpretation of Section 69 BNS.
The study further finds that the protection of women and the protection of constitutional liberty are not contradictory objectives. Properly designed procedural safeguards can advance both objectives simultaneously.
Recommendations
The first recommendation is that courts should interpret Section 69 by giving substantial importance to the accused’s intention at the time the promise was made. A subsequent failure to marry should not, standing alone, establish criminal liability.
Second, investigating agencies should conduct an objective investigation covering both incriminating and exculpatory evidence. Communications and surrounding circumstances should be considered as a whole.
Third, judicial authorities should maintain a clear distinction between rape under the BNS and the distinct offence under Section 69. The existence of a promise of marriage should not automatically determine the classification of the offence.
Fourth, courts should examine the causal connection between the alleged deception and the decision to engage in sexual relations.
Fifth, the privacy of victims should be strictly protected. Investigative and trial procedures should minimise unnecessary disclosure of personal information.
Sixth, law-enforcement personnel should receive specialised training concerning consent, digital evidence, gender sensitivity and the difference between a false promise and the subsequent breach of a genuine promise.
Seventh, prosecution decisions should be based on the statutory ingredients of the offence rather than solely upon the fact that a relationship ended unsuccessfully.
Finally, continued judicial interpretation of Section 69 will be essential. As litigation develops under the new provision, the higher courts should provide clear principles concerning intention, deception, consent, causation and evidentiary standards.
Conclusion
The Bharatiya Nyaya Sanhita, 2023 introduces an important development in India’s criminal law by expressly recognising sexual intercourse obtained through certain forms of deception and false promises of marriage as a separate offence under Section 69.
The provision responds to a genuine concern: sexual relationships may sometimes be initiated through deliberate deception, and victims of such conduct require meaningful legal protection. At the same time, criminal law must distinguish deliberate deception from the ordinary failure of an adult relationship.
The central legal issue is therefore not simply whether a promise of marriage existed. The more important questions are whether the promise was false when made, whether the accused lacked an intention to fulfil it, whether the promise caused the woman’s decision to engage in sexual relations, and whether the facts satisfy the statutory ingredients of Section 69.
The jurisprudence developed by the Supreme Court under the IPC provides an important foundation for addressing these questions. The Court has consistently recognised that a consensual relationship which later becomes unsuccessful should not automatically be treated as rape.
The BNS now places the issue within a specific statutory framework. Its success will ultimately depend upon careful judicial interpretation and responsible investigation. The protection of women must remain a central objective, but such protection should operate consistently with the constitutional values of dignity, autonomy, equality, fair procedure and personal liberty.
A balanced application of Section 69 can therefore strengthen the protection of women without unnecessarily criminalising consensual adult relationships. The future development of Indian sexual-offence jurisprudence under the BNS will depend upon maintaining this balance between protection, autonomy and justice.
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Footnotes
1. The Bharatiya Nyaya Sanhita, No. 45 of 2023, India Code (2023), § 358(1) (repealing the Indian Penal Code).
2. Bharatiya Nyaya Sanhita § 69.
3. Id. § 69, Explanation.
4. Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608, ¶ 18 (India).
5. Bharatiya Nyaya Sanhita § 69.
6. The Indian Penal Code, No. 45 of 1860, India Code (1860).
7. Bharatiya Nyaya Sanhita § 69.
8. India Const. arts. 14, 15(1), 15(3), 21.
9. See Suchita Srivastava v. Chandigarh Admin., (2009) 9 SCC 1 (India); Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1 (India); Independent Thought v. Union of India, (2017) 10 SCC 800 (India).
10. Bharatiya Nyaya Sanhita §§ 63 (definition of rape), 64–71 (punishment, including aggravated forms).
11. Id. §§ 63(vi), 64(2), 65, 70(2).
12. Id. § 63, Explanation 2 & proviso.
13. Id. §§ 28(a), 63(iii)–(iv).
14. Pramod Suryabhan Pawar, supra note 4, ¶ 18.
15. See, e.g., Mahesh Damu Khare v. State of Maharashtra, 2024 SCC OnLine SC 3471, 2024 INSC 897, ¶¶ 20–24 (India).
16. See Uday v. State of Karnataka, (2003) 4 SCC 46 (India); Deelip Singh v. State of Bihar, (2005) 1 SCC 88 (India); Deepak Gulati v. State of Haryana, (2013) 7 SCC 675 (India).
17. Pramod Suryabhan Pawar, supra note 4, ¶ 18.
18. Mahesh Damu Khare, supra note 15, ¶¶ 22–24.
19. See The Bharatiya Sakshya Adhiniyam, No. 47 of 2023, India Code (2023), § 63 (admissibility of electronic records); see generally The Bharatiya Nagarik Suraksha Sanhita, No. 46 of 2023, India Code (2023).
20. See The Information Technology Act, No. 21 of 2000, India Code (2000), § 69; Puttaswamy, supra note 9.
21. Maneka Gandhi v. Union of India, (1978) 1 SCC 248 (India).
22. Bharatiya Nyaya Sanhita § 72(1)–(2).
23. Uday, supra note 16, ¶ 25.
24. Deepak Gulati, supra note 16, ¶ 21.
25. Pramod Suryabhan Pawar, supra note 4, ¶ 18.
26. Mahesh Damu Khare, supra note 15, ¶¶ 21–24.
27. Jaspal Singh Kaural v. State (NCT of Delhi), 2025 INSC 457, ¶ 14 (India).