If Woman Knows Of Man’s Existing Marriage, His Promise To Marry Cannot Amount To "Deceitful Means" U/S 69 BNS: Kerala High Court
The Court held that the promise by a married man, known to be married, cannot prima facie be treated as a false promise capable of fulfilment.
Justice A. Badharudeen, Kerala High Court
The Kerala High Court has granted pre-arrest bail to a man accused under Section 69 BNS and provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, holding that where a woman was aware that the accused was already married, a promise of marriage made by him cannot be treated as a promise capable of fulfilment amounting to ‘deceitful means’ under Section 69 BNS.
The Bench observed that Section 69 BNS criminalises sexual intercourse by deceitful means, including where consent is obtained on a promise to marry made without any intention of fulfilling it. However, the Court noted that the person making such a promise must be legally capable of performing the promise.
Justice A. Badharudeen observed, “Section 69 of BNS is a new provision which provides imprisonment for performing sexual intercourse by employing deceitful means. This section mainly deals with two aspects, namely, (1) Performing sexual intercourse by deceitful means with a woman without intention of fulfilling the same and (2) Doing sexual intercourse by making promise to marry a woman without any intention of fulfilling the same. Coming to promise of marriage, it is the legal necessity that a party offering a promise must be qualified to give the promise. To put it otherwise, prima facie, there is a chance or probability to believe the promise by the other party to accept the promise…”.
“…When a person who already married gives a promise to marry a woman and who knows that the person giving the promise is a married man, sexual intercourse on the said promise, if any, performed between them, in such cases it is not safe to hold that the same is by any deceitful means or on the promise of marriage since the woman is aware about the incompetence of the person making the promise to perform the marriage and that the promise is an impossibility as a married man cannot marry during subsistence of the earlier marriage so as to commit the offence of bigamy. Therefore in such cases, allegation of sexual intercourse with consent believing the promise of marriage could not be held as one which would come within the purview of Section 69 of BNS”, the Bench further observed.
Advocate Bharath R. appeared for the petitioner and Advocate Syam K.P. appeared for the respondent.
The Court observed that sexual intercourse allegedly based on such a promise cannot, at the bail stage, automatically be considered to have been obtained through deceitful means.
The case arose from allegations that the accused, a manager of a company, had established a relationship with the complainant, who was employed in the same organisation and belonged to a Scheduled Caste community, allegedly on the promise of marriage. It was alleged that he later subjected her to sexual intercourse and made caste-based remarks and threats after she refused further sexual relations.
The accused contended that the allegations were a counterblast to an earlier criminal case registered against the complainant and others, and that the sexual assault allegations were introduced subsequently. The Court noted that in the earlier proceedings, the complainant had not disclosed any allegation of sexual misconduct against the accused.
Considering the timing of the complaint and the surrounding circumstances, the Court held that the allegations required fair investigation and that a prima facie case attracting the bar under Section 18 of the SC/ST (Prevention of Atrocities) Act was not made out at this stage.
The Court clarified that its observations were only for deciding the bail application and would not affect the investigation or trial.
“…the present crime was registered only at a belated stage, after the registration of Annexure A3 crime against the defacto complainant herein. During the initial crime the defacto complainant never made any allegation of sexual molestation. The same also doubts the prima facie case to eschew the bar under Section 18 of the SC/ST (POA) Act and in such a case grant of anticipatory bail can be considered. In view of the above, the order impugned is set aside and the appellant/accused shall be released on pre arrest bail”, the Bench noted.
Accordingly, the High Court set aside the order refusing bail and granted pre-arrest bail to the accused subject to conditions, including cooperation with the investigation and appearance before the investigating officer as directed.
Cause Title: X v. State Of Kerala & Anr. (Neutral Citation: 2026:KER:41967)
Appearances:
Petitioner: Bharath R., Jerry Mathew, M. T. Sameer, Reghu Sreedharan, Rameez M. Azeez, Devika K.R., Athul.P, Justin K.K, Advocates.
Respondent: Syam K.P., T.G. Sunil, Ashish Gopal K G, P.Muhammed Shiyas, Vinimol V.S., Namitha Prasad, Liji Esahak Public Prosecutor, Sanal P. Raj, Advocates.