Source: Kerala High Court 

Why in News? 

The Kerala High Court in the matter of XXX v. State of Kerala and Anr. observed that there cannot be a promise of marriage when one party is already in a subsisting marriage, making the rape charge under Section 69 of Bharatiya Nyaya Sanhita, 2023 (BNS) prima facie doubtful. 

What was the Background of XXX v. State of Kerala and Anr.(2025) Case? 

Background and Allegations: 

• Petitioner: Sayooj S, aged 28 years, son of Subrahmanian, resident of Korangod House, Thenkarissi PO, Alathur, Palakkad District. 
• Case Registration: Crime No. 755/2025 registered at Malappuram Police Station for offences punishable under Sections 84 and 69 of the Bharatiya Nyaya Sanhita, 2023 (BNS). 
• Prosecution's Case: The petitioner allegedly gave a false promise of marriage to the de facto complainant, sexually assaulted her, threatened to publish her photos and videos, and borrowed a total amount of Rs. 2,50,000/-. 
• Arrest: Petitioner was arrested on 13th June 2025 and has remained in custody since then. 

Legal Proceedings: 

• Initial Bail Application: The petitioner had earlier filed a bail application before the JFCM, Malappuram, which was presumably rejected. 
• High Court Bail Application: Filed under Section 483 of BNSS as Bail Application.  
• Hearing: The application was finally heard on 2nd July 2025, and the order was delivered on the same day. 

Arguments by Parties: 

• Petitioner's Counsel:  
  • Prosecution allegations are totally false. 
  • The incident as alleged had not occurred. 
  • The victim is a married lady, therefore there cannot be sexual intercourse with a promise of marriage. 
  • The FIR is primarily based on financial claims. 
  • The rape allegation is only to ensure petitioner yields to illegal demands. 
  • Continued detention should not be permitted considering petitioner's young age. 
• Public Prosecutor:  
  • Opposed the bail application. 
  • Submitted that allegations are serious. 
  • It was argued that continued detention is necessary as petitioner was arrested only recently.

What were the Court’s Observations? 

Key Legal Findings:

• Marital Status of Complainant: The court noted that the de facto complainant is a married lady, which is crucial to the case. 
• Section 84 of BNS Analysis: One of the offences alleged is under Section 84 of BNS, which deals with enticing or taking away with criminal intent a married woman. 
• Promise of Marriage Doctrine: The court observed that once it is the admitted case of the prosecution that the de facto complainant is a married woman, there cannot be sexual intercourse with the promise of marriage. 

Court's Reasoning: 

• Section 69 of BNS Analysis: The court held that prima facie, it is doubtful whether the offence under Section 69 can be attracted when the complainant is married. 
• Section 84 of BNS: The court noted that Section 84 is a bailable offence, therefore continued detention of the petitioner is not necessary. 
• Consensual Relationship Consideration: The court observed that it is difficult to conclude whether the relationship was consensual when a married lady enters into a physical relationship with another person. 
• Awareness of Marriage: If both parties are aware of a subsisting marriage, it cannot be alleged that sexual intercourse was with a promise to marry. 

Final Judgment: 

• Bail Granted: The application was allowed, and bail was granted. 
• Bail Conditions:  
  • Execute a bond for Rs. 50,000/- with two solvent sureties each for the like sum. 
  • Appear before the Investigating Officer as and when required. 
  • Not intimidate or influence witnesses; not tamper with evidence or contact victim or family members. 
  • Not commit any similar offences while on bail. 
  • Not leave India without court permission. 
• Modification Clause: The jurisdictional court was empowered to consider any applications for modification or deletion of conditions. 
• Clarification: The court clarified that observations made in the order are solely for disposing of the bail application and shall have no bearing at any other stage of proceedings. 

What is Section 69 of BNS? 

Legal Provision: 

• Text of Section 69: "Whoever, by deceitful means or by making promise to marry to a woman without any intention of fulfilling the same, has sexual intercourse with her, such sexual intercourse not amounting to the offence of 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." 
• Purpose: Criminalizes sexual intercourse obtained through false promises of marriage to protect women from exploitation. 
• Punishment: Imprisonment up to 10 years and fine. 

Prerequisites for Section 69: 

• Four Essential Elements:  
  • There must be a promise to marry. 
  • The promise must be made without the intention of fulfilling it. 
  • Sexual intercourse must occur on the pretext of that promise. 
  • Such sexual intercourse must not amount to rape under Section 63. 

Understanding Consent: 

• Definition: Consent is an act of reason accompanied with deliberation, where the mind weighs good and evil on each side. 
• Section 28 BNS: Defines what doesn't constitute valid consent - consent given under fear of injury or misconception of fact. 
• Two Requirements for Invalid Consent:  
  • Consent given under misconception of fact or fear of injury. 
  • The person obtaining consent knew or had reason to believe such misconceptions or fear. 
• Supreme Court Definition: Consent is an act of active will, an expression of desire after knowing the significance of the act and its consequences. 

Relationship with Section 63 of BNS: 

• Section 63 Definition: Defines rape as sexual intercourse without valid consent, including penetration through deceitful means. 
• Legal Contradiction: If consent is obtained through false promise of marriage, it should logically amount to rape under Section 63. 
• Overlap Issue: Creates confusion about when false promise constitutes rape versus Section 69 offence. 
• Judicial Clarification Needed: Courts must determine circumstances where deceit invalidates consent to constitute rape.