SECTION 69 BNS: FRAUDULENT CONSENT, CRIMINAL LIABILITY AND POTENTIAL MISUSE

Abstract

Section 69 of the Bharatiya Nyaya Sanhita, 2023 (“BNS”) creates a distinct criminal offence for sexual intercourse obtained by deceitful means, including a false promise of marriage, made without any intention of fulfilment, in cases that fall short of rape. This article examines the doctrinal foundations, evidentiary structure, and practical operation of Section 69. It situates the provision within the existing jurisprudence on consent and misconception of fact developed under Section 375 of the Indian Penal Code, and traces how the Supreme Court’s insistence on proof of dishonest intention “from the inception” of the promise, rather than mere non-fulfilment, has shaped the boundaries of criminal liability. The article then identifies the central evidentiary difficulty that Section 69 poses: because the accused’s state of mind at the time of the promise is rarely susceptible to direct proof, courts and investigators are compelled to infer intention from surrounding circumstances, creating a risk that the eventual breakdown of a relationship is read backwards as evidence of original deceit. Building on this concern, the article considers the potential for misuse of Section 69 and the procedural safeguards, including impartial investigation, judicial scrutiny at pre-trial stages, and the inherent powers of the High Courts, that can mitigate this risk without discouraging genuine complaints of sexual exploitation. A comparative analysis of the approaches taken in England and Wales, Canada, and Australia demonstrates that other common-law jurisdictions confine criminal liability for deception to forms of dishonesty that bear a sufficiently direct and material connection to the complainant’s consent, rather than treating deception in the abstract as criminal. Drawing on this comparative experience, the article concludes with a set of recommendations aimed at preserving the protective function of Section 69 while guarding against the over-criminalisation of failed relationships and genuine, if broken, promises.