Kerala High Court Rules Concealing Live-In Partner and Child to Obtain Sex on Pretext of Marriage Prima Facie Attracts Section 69 BNS for Deceitful Means

The appellant/accused (Udayan) and the de-facto complainant, who belongs to a Scheduled Caste community, agreed to enter into matrimony, leading to a formal marriage-fixation ceremony in which the bride's family incurred substantial expenditures amounting to approximately ₹10 lakh. However, the accused entered into this solemn marital arrangement while concealing vital facts regarding his domestic life: he was already cohabiting in an active live-in relationship with another woman and had fathered a three-year-old child from that union.

Following the formal fixation of the marriage, the accused invited the de-facto complainant to travel to Wayanad, where they lodged together in a hotel. Inducing her with the assurance of their upcoming nuptials, the accused compelled her to engage in sexual intercourse, to which she consented solely on the faith and premise of their proposed marriage. Upon discovering the pre-existing live-in relationship and the existence of the child, the de-facto complainant lodged a criminal complaint at Feroke Police Station in Kozhikode district. The police registered a crime against the accused under Section 69 (sexual intercourse by employing deceitful means, etc.) and Section 318(4) (cheating) of the Bharatiya Nyaya Sanhita (BNS), 2023, alongside Section 3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. After the Special Court under the SC/ST Act dismissed his pre-arrest bail plea, the accused approached the High Court of Kerala in criminal appeal seeking anticipatory bail.

Legal Topic

Criminal Law – Statutory Interpretation of Section 69 of the Bharatiya Nyaya Sanhita, 2023; Scope and Meaning of 'Deceitful Means' in Consensual Sexual Relations; Suppression of Subsisting Domestic and Matrimonial-Like Relationships; Statutory Bar on Anticipatory Bail under Section 18/18A of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Core Legal Issue

Whether the deliberate suppression of an existing live-in relationship and a biological child by an accused while obtaining consent for sexual intercourse on the premise of an agreed marriage amounts to 'deceitful means' under the first limb of Section 69 of the Bharatiya Nyaya Sanhita, 2023, even if the accused claims readiness and willingness to marry the complainant.

What Did the Court / Authority Decide?

The High Court of Kerala, presided over by Justice A. Badharudeen, dismissed the criminal appeal and affirmed the Special Court's order rejecting anticipatory bail. The Court held that Section 69 of the BNS criminalises sexual intercourse not amounting to rape in two distinct statutory situations: first, where consent is procured through 'deceitful means'; and second, where consent follows a promise to marry made without any intention of fulfilling it.

The Single Judge ruled that the appellant's conduct squarely fell within the first limb of Section 69 BNS. The Court rejected the accused's defense that Section 69 requires a retraction or breach of the promise to marry, holding that even if an accused professes an ongoing willingness to marry, the intentional suppression of a live-in partner and child constitutes deceitful means to induce consent. Holding that prima facie offences under Section 69 BNS and the SC/ST Act were established, the Court found the statutory bar on anticipatory bail under Section 18 of the SC/ST Act directly applicable. Justice Badharudeen directed the appellant to surrender before the investigating officer forthwith, observing that custodial interrogation was essential to the probe.

Key Legal Points

• Bifurcated Structure of Section 69 BNS: Justice A. Badharudeen clarified that Section 69 of the BNS operates on two independent limbs: (i) obtaining consent for sexual intercourse through 'deceitful means' (including suppression of identity, false inducements, or concealed relationships), and (ii) obtaining consent through a false promise of marriage made ab initio without intention to marry.
• Willingness to Marry Does Not Cure Deceit: The Court conclusively held that an accused cannot evade prosecution under Section 69 BNS by merely asserting that he remains ready and willing to marry the victim, because fraudulent concealment of material facts vitiates consent under the 'deceitful means' limb irrespective of marriage performance.
• Material Suppression of Matrimonial Status: Concealing an active live-in relationship and the existence of a three-year-old child from a prospective spouse strikes at the root of informed consent, rendering sexual intercourse induced thereby an offence under the first situation contemplated in Section 69 BNS.
• Applicability of SC/ST Act Bar: Because a prima facie case under Section 69 BNS and Section 3(2)(va) of the SC/ST Act was established on the allegations, the statutory embargo against anticipatory bail under Section 18 and Section 18A of the SC/ST Act barred pre-arrest bail relief.
• Necessity of Custodial Interrogation: The High Court underscored that where material facts and deceitful inducements form the bedrock of the prosecution, custodial interrogation is an absolute necessity, and granting anticipatory bail would destroy and impede the investigation.

Relevant Law

• Section 69, Bharatiya Nyaya Sanhita, 2023 (BNS): Criminalises sexual intercourse by employing deceitful means, including false promises of employment, promotion, inducement, or marrying after suppressing one's identity or earlier relationships, punishable with rigorous imprisonment up to ten years and fine.
• Section 318(4), Bharatiya Nyaya Sanhita, 2023 (BNS): Penalises cheating and dishonestly inducing delivery of property or valuable security (corresponding to Section 420 of the Indian Penal Code, 1860).
• Section 3(2)(va), Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989: Prescribes enhanced punishment for committing any specified Schedule offence against a person belonging to an SC/ST community knowing that such person is a member of that community.
• Section 18 & Section 18A, SC/ST (Prevention of Atrocities) Act, 1989: Explicitly bars the grant of anticipatory bail under Section 438 CrPC / Section 482 BNSS where a prima facie offence under the Act is made out.

Arguments of the Parties

• Contentions of the Appellant (Accused):
  • The appellant, represented by Advocates R. Bindu (Sasthamangalam), G. Rajagopal (Kummanam), and Ajay T.S., argued that Section 69 BNS was inapplicable on the facts because the penal provision contemplates a breach or retraction of a promise to marry.
  • The defence contended that the appellant never retracted from his commitment and maintained that he remained ready and willing to marry the de-facto complainant.
  • It was submitted that the sexual relations between the parties were consensual following the engagement ceremony, that no false promise of marriage existed at inception, and that the invocation of the SC/ST Act was an afterthought to deny him the benefit of anticipatory bail.
• Contentions of the Respondent (State and Complainant):
  • Public Prosecutor M.A. Shihab, appearing for the State of Kerala, opposed the plea, submitting that the appellant had deliberately suppressed his subsisting domestic cohabitation and the paternity of a three-year-old child to induce the woman and her family into spending ₹10 lakh on engagement rituals.
  • The prosecution contended that sexual consent procured through deceptive non-disclosure of marital/domestic status falls squarely within the definition of 'deceitful means' under Section 69 BNS.
  • It was argued that given the gravity of the offences and the statutory bar under Section 18 of the SC/ST Act, the appellant was disentitled to anticipatory bail and required custodial interrogation.

Why Does It Matter?

This pronouncement by the Kerala High Court marks one of the earliest authoritative judicial interpretations delineating the precise contours of Section 69 of the Bharatiya Nyaya Sanhita, 2023. Under the erstwhile Indian Penal Code, prosecutions for sexual relations on the pretext of marriage were typically prosecuted under Section 375/376 IPC (rape under misconception of fact via Section 90 IPC), which frequently led to legal ambiguity regarding the boundary between breach of promise and false promise.

Section 69 BNS was enacted to specifically address this lacuna by codifying 'sexual intercourse by employing deceitful means' as an independent substantive offence distinct from rape. Justice Badharudeen's judgment provides critical clarity by ruling that Section 69 is not restricted solely to broken marriage promises. By establishing that the first limb of Section 69 penalises any sexual intimacy secured through deceitful means—including the fraudulent concealment of prior domestic relationships and children—the decision establishes that marital willingness cannot sanitize fraudulent non-disclosure. It reinforces personal autonomy and informed consent, preventing individuals from using technical promises to shield deceitful exploitation.

Legal Takeaway

Willingness to solemnize a marriage cannot operate as an exculpatory defense under Section 69 of the Bharatiya Nyaya Sanhita, 2023, where sexual intercourse was induced through fraudulent concealment. Suppressing an ongoing live-in partnership and the existence of a biological child constitutes 'deceitful means' under the first limb of Section 69 BNS, vitiating consent and disentitling the accused to pre-arrest bail under the SC/ST Act.

Sources (Primary & Additional)

• Primary Judicial Order: High Court of Kerala, Udayan v. XXX & Ors. (Criminal Appeal No. 1231 of 2026, Decided on October 06, 2026, CNR: KLHC010702072026, 2026:KER:74972), per Justice A. Badharudeen. LiveLaw Judgment PDF Link.
• Authoritative Legal Reporting (LiveLaw): LiveLaw News Network, "S.69 BNS | Hiding Live-In Relationship, Child With Another Amount To 'Deceitful Means' To Have Sexual Intercourse With Woman: Kerala High Court" (Citation: 2026 LiveLaw (Ker) 553, Published on October 06, 2026). LiveLaw Article.
• Authoritative Legal Reporting (Bar & Bench): Praisy Thomas, "Hiding live-in relationship, child from prospective bride amounts to offence of sex by deceitful means: Kerala High Court" (Published on October 06, 2026). Bar & Bench Article.