All Cases of Sexual Intercourse Based on a False Promise of Marriage NOT Covered under Section 69 of the BNS

Recently, a First Information Report (FIR) was registered against Yash Dayal, a Royal Challengers Bangalore (RCB) player, under Section 69 of the Bharatiya Nyaya Sanhita (BNS) for engaging in sexual intercourse on the false pretext of marriage. The complainant alleged that, relying on Yash Dayal’s false promise of marriage, she consented to sexual intercourse. Notably, the FIR was not registered under Section 64 (rape) of the BNS.

This raises the question: Are all cases of sexual intercourse based on a false promise of marriage (vitiated consent) now exclusively covered under Section 69 of the BNS?

Prior to the enactment of the BNS, sexual intercourse induced by a false promise of marriage was punishable under Section 376 of the Indian Penal Code (IPC) and classified as rape. This classification stemmed from Section 375 of the IPC, which defines rape as, inter alia, sexual intercourse with a woman without her consent, and Section 90, which states that consent given under a misconception of fact is not valid. Thus, if a man obtained a woman’s consent for sexual intercourse through a false promise of marriage, the act was deemed rape.

In the BNS, rape and consent are defined under Sections 63 and 28, respectively, with no substantive changes in their language, ensuring consistency with prior judicial precedents. This raises a pertinent question: If Sections 63 and 28 remain unchanged, how is an act previously classified as rape under the IPC no longer considered rape under the BNS?

The answer lies in the language of Section 69 of the BNS, which states: “Whoever, by deceitful means or by making a promise to marry a woman without any intention of fulfilling the same, has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape, shall be punished…” The phrase “such sexual intercourse not amounting to the offence of rape” clarifies that Section 69 applies only to cases that do not meet the criteria for rape under Section 63. Thus, if an act of sexual intercourse induced by a false promise of marriage fulfills the essential elements of Section 63, it constitutes rape punishable under Section 64. If it does not, it may fall under Section 69.

The critical question then is: When does sexual intercourse induced by a false promise of marriage constitute rape?

For Section 28 of the BNS (equivalent to Section 90 of the IPC) to apply, two conditions must be met: (1) the consent must have been given under a misconception of fact, and (2) the person obtaining the consent must have known, or had reason to believe, that the consent was given due to such misconception. In cases where a man makes a false promise of marriage with no intention of fulfilling it, solely to induce sexual intercourse, the woman’s consent is vitiated by a “misconception of fact.” However, a mere breach of a promise does not constitute a false promise. To establish a false promise, it must be shown that the promisor had no intention of honoring the promise at the time it was made. Consent under Section 63 is vitiated when the misconception of fact forms the basis for the woman’s decision to engage in the act.

A careful analysis of Sections 63 and 69 reveals a key distinction: consent. Section 63 hinges on the absence of valid consent, whereas Section 69 does not explicitly mention consent. Thus, whether an act falls under Section 63 or Section 69 depends on the validity of consent. Under Section 28, consent is vitiated only when a “misconception of fact” forms the basis for the woman’s decision to engage in sexual intercourse.

For instance, if a man makes a false promise of marriage with the intent to induce sexual intercourse, and the woman consents solely because she believes the promise to be genuine, the act constitutes rape under Section 64, as a misconception of fact vitiates her consent. Conversely, if a woman consents to sexual intercourse for reasons unrelated to the promise—such as being deeply in love with the man or choosing to engage in the act despite knowing marriage is improbable—her consent is not vitiated. In such cases, the act does not amount to rape under Section 64. However, recognizing the mala fide intent of the man, the legislature introduced Section 69 to address this anomaly, making such acts punishable despite the presence of genuine consent.

It has been consistently observed that in cases where a complainant alleges sexual intercourse induced by a false promise of marriage, investigating authorities/police often register an FIR under Section 69 of the BNS instead of Section 64, erroneously assuming that all such cases are exclusively governed by Section 69. This practice overlooks the critical question of whether the complainant’s consent was vitiated under Section 28 of the BNS. Such a misconception leads to the incorrect application of the law, as the determination of whether the act constitutes rape under Section 64 or an offence under Section 69 hinges on whether the consent was obtained under a misconception of fact, as defined in Section 28.