BNS Section 69 | Consensual Sex on Promise of Marriage Not an Offence Without Proven Deceitful Intent : Kerala HC

The Kerala High Court, in a significant bail order, has clarified that Section 69 of the Bharatiya Nyaya Sanhita, 2023 (BNS) does not automatically criminalize consensual sexual relationships where the promise of marriage is alleged. The Court emphasized that the nature of consent and the absence of deceitful intent are matters of evidence, warranting bail when the investigation reveals a prolonged live-in relationship and mutual consent.

Background & Facts

The Dispute

The applicant, Muhammad Nihal, aged 28, was accused in Crime No. 325/2026 of Kannur Town Police Station for an offence punishable under Section 69 of the Bharatiya Nyaya Sanhita, 2023 (BNS). The prosecution alleged that between September 2025 and 16.03.2026, the applicant engaged in sexual intercourse with the de facto complainant (victim) on the false promise of marriage, thereby committing the offence.

Key Facts

• The applicant and the victim were in a live-in relationship for a considerably long period.
• They resided together at Flat, Kakkad, Puzhathi Amsom and a rented house.
• The couple traveled to various places along with the victim’s mother and brother, indicating a public acknowledgment of their relationship.
• The First Information Statement (FIS) revealed that the sexual intercourse was consensual.
• The victim’s case was that she consented to the relationship based on the applicant’s promise to marry her.
• The applicant was remanded to judicial custody on 04.05.2026.

Procedural History

• 04.05.2026: Applicant remanded to judicial custody.
• 04.06.2026: CMP No. 2 of 2026 filed before the Judicial Magistrate of First Class-I, Kannur, seeking bail.
• 29.06.2026: Bail Application No. 3291 of 2026 filed before the Kerala High Court.
• 29.06.2026: High Court heard arguments and delivered the order granting bail.

Relief Sought

The applicant sought regular bail under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), arguing that he was falsely implicated and that no material connected him to the alleged offence.

The Legal Issue

The central question before the Court was whether consensual sexual intercourse on the promise of marriage, without evidence of deceitful intent, constitutes an offence under Section 69 of the BNS, warranting continued detention of the accused during investigation.

Arguments Presented

For the Applicant

• The applicant is innocent and falsely implicated in the case.
• There is no material on record to connect the applicant with the alleged crime.
• The relationship was consensual, and the couple lived together for a prolonged period, including traveling with the victim’s family.
• The investigation is almost complete, and continued detention is unnecessary.

For the Respondent/State

• The alleged incident occurred as part of the intentional criminal acts of the applicant.
• The applicant is not entitled to bail at this stage of the investigation.

The Court's Analysis

The Court examined the First Information Statement (FIS) and observed the following:

• The applicant and the victim were in a live-in relationship and resided together for a considerable period.
• They traveled together with the victim’s mother and brother, indicating a public acknowledgment of their relationship.
• The sexual intercourse was consensual, and the victim’s consent was based on the promise of marriage.

The Court noted that while the victim’s case was that she consented to the relationship based on the promise of marriage, this alone does not automatically establish criminality under Section 69 BNS. The Court emphasized that the nature of consent and the presence or absence of deceitful intent are matters of evidence, which must be established during trial.

"A reading of the FIS would show that the applicant and the victim were in live-in relationship and they resided together for a considerably long period. They have also went on tour to various places along with the mother and the brother of the victim. It is also discernible from the FIS that the sexual intercourse they had was consensual in nature. However, the case of the victim is that the she consented for sex since the applicant promised that he would marry her. It is a matter of evidence. The investigation is almost over. For these reasons, I do not find any reason to hold that the continued detention of the applicant is required for any purpose."

The Court concluded that continued detention was not necessary, particularly since the investigation was nearly complete and no evidence of deceitful intent had been established at this stage.

The Verdict

The Kerala High Court allowed the bail application and directed the release of the applicant on the following conditions:

1. The applicant shall execute a bond for Rs. 1,00,000 (Rupees One Lakh only) with two solvent sureties for the like sum each, to the satisfaction of the jurisdictional Magistrate/Court.
2. The applicant shall fully cooperate with the investigation.
3. The applicant shall appear before the investigating officer between 10:00 a.m. and 11:00 a.m. every Saturday until further orders and as and when required.
4. The applicant shall not commit any offence of a like nature while on bail.
5. The applicant shall not contact any prosecution witnesses, directly or indirectly, or tamper with evidence.
6. The applicant shall not leave the State of Kerala without the permission of the trial Court.
7. Any application for modification or cancellation of bail conditions shall be filed before the jurisdictional court.

What This Means For Similar Cases

Consensual Relationships and Section 69 BNS: A Matter of Evidence

• Section 69 BNS criminalizes sexual intercourse based on a false promise of marriage, but the Court clarified that consensual relationships do not automatically fall under this provision.
• The burden of proof lies on the prosecution to establish deceitful intent at the time of the promise. Mere allegation of a broken promise is insufficient.
• Practitioners must argue that prolonged cohabitation, public acknowledgment of the relationship, and absence of coercion weaken the case under Section 69 BNS.

Bail Conditions: Balancing Investigation and Liberty

• Courts are likely to grant bail in cases under Section 69 BNS where the investigation reveals consensual relationships without evidence of deceit.
• The conditions imposed (e.g., regular appearance before the investigating officer, non-contact with witnesses) reflect the Court’s concern for ensuring cooperation with the investigation while safeguarding the accused’s liberty.
• Defence counsel should emphasize completion of investigation and lack of flight risk to secure bail.

Implications for Live-In Relationships

• The judgment reinforces that live-in relationships, even those based on promises of marriage, are not inherently criminal unless deceitful intent is proven.
• Courts may consider social acknowledgment of the relationship (e.g., traveling with family) as a factor in determining the nature of consent.
• Prosecution must focus on establishing fraudulent intent rather than relying solely on the victim’s allegations.