The Bombay High Court has delivered a significant ruling on the interpretation of Section 69 of the Bharatiya Nyaya Sanhita, 2023 (BNS), clarifying that consensual physical relations within a live-in relationship cannot be prosecuted as rape on the false promise of marriage. The judgment underscores the importance of distinguishing between genuine criminal intent and consensual adult relationships, setting a precedent for similar cases under the new criminal code.
Background & Facts
The Dispute
The applicant, Mr. Paresh Hira Wagh, sought anticipatory bail under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), apprehending arrest in Crime No. 634 of 2026 registered at Vakola Police Station, Mumbai. The complaint alleged an offence punishable under Section 69 of the BNS, which criminalizes sexual intercourse on the false promise of marriage, employment, promotion, or identity concealment.
Key Facts
The applicant and the complainant were in a live-in relationship for approximately three years, residing together in a rented premises where the rent agreement was jointly held.
Both parties engaged in consensual physical relations during this period.
The complainant alleged that the applicant committed rape under the false promise of marriage.
The FIR was registered on 04.06.2026 under Section 69 BNS.
Procedural History
13.07.2026: The applicant filed Anticipatory Bail Application No. 1815 of 2026 before the Bombay High Court.
The court directed the Investigating Officer to serve the victim (respondent no. 2) and issued notice to the respondents, returnable on 24.07.2026.
The learned Additional Public Prosecutor waived service of notice on behalf of the State.
Relief Sought
The applicant sought anticipatory bail, arguing that the allegations were based on a consensual relationship and did not constitute an offence under Section 69 BNS.
The Legal Issue
The central question before the court was whether Section 69 of the BNS applies to a consensual live-in relationship where both parties were adults, and the physical relations were not induced by a false promise of marriage, but rather occurred within the context of a long-term cohabitation.
Arguments Presented
For the Applicant
The applicant contended that the relationship was consensual and that both parties had lived together for three years, sharing a rented premises.
It was argued that the allegations of rape on the false promise of marriage were mala fide, as the relationship was based on mutual consent and not deception.
The applicant relied on the principle that consensual adult relationships cannot be criminalized under Section 69 BNS merely because one party later alleges a false promise.
For the Respondent/State
The State, represented by the Additional Public Prosecutor, did not oppose the bail application but emphasized the need for the applicant to cooperate with the investigation.
The complainant’s allegations were noted, but the court observed that the consensual nature of the relationship was a critical factor.
The Court's Analysis
The court examined the factual matrix and the legal provisions under Section 69 BNS, which criminalizes sexual intercourse on the false promise of marriage, employment, promotion, or identity concealment. The court observed:
"Considering the nature of allegations, the Investigating Officer is directed to serve the victim who is joined as respondent no. 2. In view of the allegations made against this applicant showing consensual relations in between two consenting adults who were living in a live-in relationship for several years, at this stage, the custodial interrogation of this applicant need not be insisted upon and hence his personal liberty needs to be protected."
The court emphasized that the consensual nature of the relationship was a decisive factor. It held that Section 69 BNS cannot be invoked where both parties were adults in a live-in relationship, and the physical relations were not induced by deception. The court distinguished this case from scenarios where a false promise of marriage is used to exploit a victim, noting that the applicant and the complainant had cohabited for an extended period without any prior deception.
The Verdict
The Bombay High Court granted anticipatory bail to the applicant, subject to the following conditions:
The applicant shall furnish a Personal Recognizance (P.R.) Bond of Rs. 25,000 with a solvent surety of the like amount.
The applicant shall attend Vakola Police Station every Monday between 10:00 a.m. to 5:00 p.m. and as and when called upon by the Investigating Officer.
The applicant shall cooperate with the investigation and trial, refrain from tampering with evidence, and not influence witnesses directly or indirectly.
The matter is listed for further consideration on 24.07.2026.
What This Means For Similar Cases
Consensual Live-in Relationships Cannot Be Criminalized Under Section 69 BNS
The judgment establishes that Section 69 BNS cannot be used to criminalize consensual relationships between adults, particularly where both parties have cohabited for an extended period.
Practitioners must argue that mere allegations of a false promise of marriage are insufficient to invoke Section 69 BNS if the relationship was consensual and long-term.
Custodial Interrogation Not Necessary for Consensual Relationships
The court held that custodial interrogation is not necessary where the relationship was consensual, and the parties were adults living together.
This sets a precedent for anticipatory bail applications in similar cases, where the accused can argue that their personal liberty should be protected pending investigation.
Burden of Proof Lies on the Prosecution to Establish Deception
The judgment implies that the prosecution must establish deception to sustain a charge under Section 69 BNS. Mere allegations of a false promise, without evidence of inducement, are insufficient.
Defense counsel can use this ruling to argue that consent negates criminal liability under Section 69 BNS.
