Mere Existence Of Promise To Marry Or Mere Use Of Expression ‘Cheated’ Not Sufficient To Attract Sec.69 BNS: Kerala High Court

The High Court further clarified that the mere use of the expression “cheated” in the FIS (First Information Statement) cannot, by itself, constitute the offence unless the essential statutory ingredients are disclosed by the factual allegations. sole accused in a criminal case registered under Sections 69 and 316(2) of the Bharatiya Nyaya Sanhita, 2023 (BNS), seeking an order quashing the First Information Report and all further proceedings arising therefrom.

The Single Bench of Justice Jobin Sebastian held, “The FIS does not contain any specific allegation that, at the time of the initial sexual relationship, the petitioner was aware that the de facto complainant had already instituted proceedings for divorce before the Family Court. Equally, there is no allegation in the FIS that the petitioner had promised to marry the de facto complainant after she obtained a divorce from her then legally wedded husband. The mere existence of a promise to marry, without the necessary factual foundation to establish that such promise was false from its inception and that it had a direct nexus with the consent for the sexual act, would not, by itself, be sufficient to attract Section 69 of the BNS.”

“The allegation that, after learning about the pregnancy, the accused asked the de facto complainant to abort the child, coupled with the allegation that he thereby cheated her, does not, in the absence of the necessary factual ingredients, disclose the commission of the offence alleged under the said provision. The mere use of the expression “cheated” in the FIS cannot, by itself, constitute the offence unless the essential statutory ingredients are disclosed by the factual allegations”, it added.

Advocate Rameez Nooh represented the Petitioner while Senior Public Prosecutor Megha K. Xavier represented the Respondent.

Factual Background

It was alleged that on various occasions, the accused had sexual intercourse with the de facto complainant after promising to marry her. Subsequently, the marriage engagement ceremony of the de facto complainant with the accused was solemnised, and both of them started living together as husband and wife. It was further alleged that, after the accused came to know that the de facto complainant was two months pregnant, he asked her to abort the child and thereby cheated her.

Reasoning

Delving into the issue of inherent jurisdiction of the High Court under Section 528 of the BNSS, the Bench held that the said provision corresponds to Section 482 of the Code of Criminal Procedure and the inherent power of the High Court to quash criminal proceedings is extraordinary in nature, which is required to be exercised sparingly, cautiously and in appropriate cases, particularly to prevent abuse of the process of law or otherwise to secure the ends of justice.

“The scope of enquiry in a petition seeking quashing of criminal proceedings is, therefore, limited to examining whether the allegations, on a plain reading and in conjunction with the materials available on record, disclose the essential ingredients of the offences alleged. If the allegations give rise to disputed questions of fact which require appreciation of evidence, such matters are ordinarily to be left for determination by the competent trial court after a full-fledged trial”, it added.

Taking the facts into consideration, the Bench noted that the earlier instances of alleged sexual intercourse between the petitioner and the de facto complainant occurred in February 2026. The First Information Statement (FIS) further stated that thereafter they repeatedly engaged in sexual intercourse, both inside the house of the accused and inside the house of the de facto complainant. It was also specifically stated that the de facto complainant consented to the sexual intercourse on the premise that the accused had promised to marry her.

The Bench noticed a significant aspect emerging from the FIS itself that the de facto complainant obtained a divorce from her legally wedded husband only in March 2026. “Thus, at the time when the relationship between the petitioner and the de facto complainant developed and when the sexual relationship initially commenced, the de facto complainant was admittedly a married woman and her marriage had not been dissolved by a decree of a competent court”, it added.

On a perusal of the facts of the case, the Bench noted that the relationship between the petitioner and the de facto complainant developed while she was still married and while her husband was alive. The alleged sexual relationship was not confined to a single isolated occurrence, and the FIS itself referred to their repeated sexual intercourse at different places.

Highlighting the difference between a false promise to marry and a subsequent failure to fulfil a promise to marry, the Bench explained, “For the purpose of attracting criminal liability on the ground that consent was vitiated by a false promise of marriage, there must be a foundational allegation and material indicating that the promise was false at the very inception and that the promise had a direct nexus with the woman's decision to engage in the sexual relationship. A subsequent failure to marry, by itself, cannot retrospectively render consensual sexual intercourse an offence.”

Thus, holding that the allegations did not disclose the essential ingredients necessary to attract the offences punishable under Sections 69 and 316(2) of the BNS, the Bench quashed the FIR and the subsequent proceedings.

Cause Title: Zahid Shanavas v. State of Kerala (Neutral Citation: 2026:KER:67526)

Appearance

Petitioner: Advocates Rameez Nooh, Fathima K., Anjana S. Raj, Krishnendu K.V., Jenna Susan Baji, Muhammed Savad

Respondent: Senior Public Prosecutor Megha K. Xavier, Advocate K.N. Muhammed Thanveer, P. Rafthas

Click here to read/download Order