Introduction:
The Bharatiya Nyaya Sanhita, 2023, (BNS), has separated sexual intercourse under deception from the grave offence of rape. Section 69 BNS has defined sexual intercourse by employing deceitful means. This is a jurisprudential contour between Sections 371 and 90 of the repealed Indian Penal Code, 1860. The Supreme Court conceptualised it in Deepak Gulati Vs. State of Haryana (AIR 2013 SC 2071).
What is Section 69 BNS?
Section 69 punishes the person who commits intercourse with a woman by deceitful means or by making a promise to marry with no intention to fulfil it. This section overtly states that it does not constitute the offence of rape. The deceitful means in this section include inducement or false promise of employment or promotion, or marrying by suppressing identity. The prescribed punishment for the offence is imprisonment for a term, which may extend to ten years and liable to fine also. Section 69 indirectly addresses consensual sex obtained on the pretext of misrepresentation or a false promise of marriage. It is distinct in nature from the grievous crime of rape.
Consensual Sex:
Consensual sex means sexual intercourse with the mutual consent of the parties. Section 69 Bharatiya Nyaya Sanhita questions the reason behind this consent. The Supreme Court of India has discussed the obtained consent in consensual sex under deception in its Deepak Gulati judgment.
Section 69 covers consensual sex if the consent involved is built on the misrepresentation of facts or false promise. The term “under misconception of fact” includes all cases where consent is obtained by misrepresentation leading to misconception of facts relevant to consent. Two propositions must be established for the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry. The promise was in bad faith and with no intention of being adhered to at the time it was given. The false promise itself has a direct nexus to the woman’s decision to engage in the sexual act. The Court also considers the alleged person’s awareness that the second person’s consent was under misconception for the sexual intercourse.
False Marriage Promise:
The Court considers breach of promise and the non-fulfilment of false promise for the application of Section 69. The Delhi High Court in Rohit Vs. State NCT of Delhi and Anr. (2026/DHC/2902) held that the suppression of information about marital status and children while making promise of marriage amounts to misrepresentation. It signifies dishonest intention since the inception of the relationship and comes under deceitful means.
Whereas a person has the best intentions and is unable to marry the woman owing to various unavoidable circumstances, it does not always amount to a misconception of fact. The Supreme Court, in a recent judgment, Rameshbhai Kalyani Vs. The State of Gujarat & Anr. (2026 SCC OnLine SC 1818), reiterated that the person’s intention at the inception of the promise is relevant, rather than the fact that the marriage does not take place.
Conclusion:
Section 69 is a long-developed concept in judicial judgments. It deals with the contours of sexual intercourse with consent under deception. Its application requires the assessment of facts relevant to the circumstances under which the consensual intercourse has been made. The section has potentially also been misused and abused after bitter live-in breakups. The distinction between breach of promise and the intention of non-fulfilment of false promise ensures its fair application.
