Sexual Intercourse After Suppressing Earlier Relationship & Child, Though Not Rape, Falls Under 'Deceitful Means' U/S 69 BNS: Kerala High Court
The Court dismissed an accused's appeal in SC/ST Act case, holding that the bar on anticipatory bail under Section 18 applies, and directed him to surrender forthwith.
Justice A. Badharudeen, Kerala High Court
The Kerala High Court has held that suppressing a relationship in the nature of marriage, and a child born of it, while fixing a marriage with another woman is prima facie sexual intercourse by "deceitful means" under Section 69 of the BNS. It held this even though such intercourse may not be treated as rape.
Dismissing the accused's appeal against the refusal of anticipatory bail, the Court held that the BNS offences correspond to scheduled offences, so Section 3(2)(va) of the SC/ST (Prevention of Atrocities) Act, 1989 was also attracted. That brought the bar under Section 18 into play, and custodial interrogation was held necessary. The accused was directed to surrender before the Investigating Officer.
A Bench of Justice A. Badharudeen while hearing the appeal at the admission stage, observed, “…At the time of fixing the marriage and prior to that, the appellant was fully aware of the fact that he had a relationship with a lady in the nature of marriage and that a child was also born to them. Despite this vital aspect, the same was suppressed from the knowledge of the defacto complainant and her family, and the marriage fixation ceremony was conducted and the marriage was fixed. Subsequently, on the said premise of marriage, after suppressing the earlier relationship, the defacto complainant was subjected to sexual intercourse by deceitful means. Though the said overt act may not be treated as rape, the same would fall under the first situation dealt with in Section 69 of the BNS, as already pointed out…”.
Advocate R. Bindu appeared for the appellant and M.A. Shihab, Public Prosecutor appeared for the respondent.
The prosecution case is that a marriage fixation ceremony was held on July 06, 2025 between the appellant, who does not belong to a Scheduled Caste or Tribe, and the de facto complainant, who belongs to a Scheduled Caste. It was later found that he had suppressed a live-in relationship in which he was the father of a three-year-old child.
The complainant's family spent Rs 10 lakh on the ceremony, which 1,000 persons attended. At his request, she travelled to Wayanad and stayed at a hotel, where, it is alleged, he compelled her to have intercourse on the premise that they would marry. Crime No. 138/2026 was registered at Feroke Police Station, Kozhikode, under Sections 318(4), 3(5) and 69 of the BNS and Section 3(2)(va) of the SC/ST (PoA) Act.
The Special Court, Kozhikode, rejected his anticipatory bail plea on June 17, 2026, subsequent to which, he appealed. Notice was served on the complainant under Section 15A(3) of the SC/ST (PoA) Act, but she did not appear.
The appellant argued that Section 318(4) requires delivery of property, and that Section 69 requires a promise followed by retraction, whereas he was ready to marry. The Public Prosecutor argued that suppression of the relationship was deceit under Section 69, and that custodial interrogation, seizure of the dress worn at the time and a potency test were essential.
The Court noted that Section 69 covers two situations: sexual intercourse by deceitful means, and sexual intercourse on a false promise to marry without intention to fulfil it. It found that the appellant knew of his earlier relationship and child at the time of the fixation, yet suppressed this from the complainant and her family. The complainant was then "subjected to sexual intercourse by deceitful means." The Court held that "though the said overt act may not be treated as rape, the same would fall under the first situation dealt with in Section 69 of the BNS."
Since the BNS offences correspond to the scheduled offences, Section 3(2)(va) of the SC/ST (PoA) Act was prima facie attracted. Finding custodial interrogation "an absolute necessity," the Court held that anticipatory bail would "impede and destroy the investigation," and the Section 18 bar applied.
Cause Title: Udayan v. X & Ors. (Neutral Citation: 2026:KER:74972)
Appearances:
Appellant: Advocates R. Bindu (Sasthamangalam), G. Rajagopal (Kummanam) and Ajay T.S.
Respondent: Public Prosecutor M.A. Shihab.