The Kerala High Court PIL on BNS Section 69: a constitutional challenge to the 'false promise of marriage' offence

The post-2024 criminal-codes restructuring produced several substantive innovations in the offence framework — some carrying forward IPC categories with refinement, others introducing categories that the IPC had not addressed. §Section 69 BNS falls into the second category. The IPC had not contained an offence specifically targeted at sexual intercourse obtained through deception (though the broader rape framework under Section 375 IPC had been read, in some judicial development, to cover the circumstance through the "consent obtained by misconception of fact" route under the section's explanation). Section 69 BNS pulls the deception offence out and gives it a separate doctrinal home, with its own elements, defences and punishment.

The structure of the new offence has provoked critique from multiple directions. The Kerala High Court PIL — Vimal Vijay v. Union of India, W.P.(C) No. 31598 of 2024 — is the first reported constitutional challenge to the section. The High Court has issued notice to the Centre. The substantive hearing is pending.

This piece is a preview of the constitutional question. The judgment is yet to come; what is on the record is the petition, the Centre's response (when filed), and the early academic and bar engagement with the section.

The provision

Section 69 BNS reads, in operative terms:

Whoever, by deceitful means or by making promise to marry to 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 with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.

Explanation. — "deceitful means" shall include inducement for, or false promise of employment or promotion, or marrying by suppressing identity.

The structural features of the provision are immediately apparent.

• The actus reus is sexual intercourse, obtained by deceitful means or by a false promise to marry without intention of fulfilment.
• The offender is gendered male — "whoever ... has sexual intercourse with her" implies an opposite-sex sexual encounter where the offender is the male partner.
• The victim is gendered female — "with her."
• The conduct is structured as a subsidiary offence to rape — "such sexual intercourse not amounting to the offence of rape" — operating in the doctrinal space where consent has been obtained but on the basis of deception.
• The "deceitful means" category is extended by the Explanation to include false promise of employment, false promise of promotion, and marriage by suppressing identity.
• The punishment is imprisonment up to ten years and fine.

The constitutional arguments

The PIL articulates four principal constitutional arguments.

Article 14 — arbitrariness and intelligible differentia

The first argument engages the equality protection. Section 69 treats the same underlying conduct — sexual intercourse obtained through deception — differently depending on the identity of the parties. Where the offender is a man and the victim is a woman, the offence applies. Where the parties are of the same sex, or where the offender is a woman and the victim a man, the offence does not apply. The PIL's argument is that this differential treatment lacks intelligible differentia — there is no principled reason why the deception's wrongness should depend on the sex of the deceiver and the deceived.

The argument is doctrinally tight. Under Article 14, classification is permissible where it rests on intelligible differentia that has rational connection to the object of the statute. The PIL contends that the gender-binary classification in Section 69 cannot satisfy this requirement; the object of the section (penalising deception in obtaining sexual intercourse) does not vary by the parties' gender.

Article 15(1) — discrimination on the ground of sex

The second argument engages the more specific protection against sex-based discrimination. Article 15(1) prohibits the State from discriminating "on grounds only of religion, race, caste, sex, place of birth or any of them." The PIL contends that Section 69, by constructing the offence around the sex of the parties, discriminates on grounds of sex within the meaning of the article.

The argument runs into the established proposition that protective legislation in favour of women is generally permitted under Article 15(3). The State will likely defend the section on the basis that it protects women from a specific harm; the PIL's counter-argument is that the protective rationale does not survive scrutiny where the harm extends to other gender configurations and the law does not.

Article 19(1)(a) — autonomy and expression

The third argument is the autonomy argument. Adults have the right to make decisions about their personal and intimate lives, including decisions to engage in sexual intercourse. The PIL argues that the State's criminalisation of conduct that occurs between consenting adults — even where deception is involved — is a substantial intrusion on autonomy that must be justified against the Article 19 and Article 21 framework.

The argument here is harder, because the conduct involves a third element (deception) that the State has a legitimate interest in addressing. The PIL's framing is that deception in obtaining consent is a wrong, but the response should be tort or contract — not criminal punishment with a ten-year maximum sentence.

Article 21 — dignity and the LGBTQIA+ exclusion

The fourth argument engages the post-Puttaswamy and post-Navtej Singh Johar dignity framework. The constitutional protection of sexual autonomy and identity, developed in the privacy and decriminalisation jurisprudence, requires the State to protect all persons against sexually-coercive conduct — including conduct that involves deception. Section 69's structural exclusion of LGBTQIA+ relationships from its protective scope, the PIL argues, fails this constitutional requirement.

The argument is doctrinally strong. The post-Puttaswamy / Navtej line has established that the dignity of LGBTQIA+ persons is constitutionally protected; that protection cannot be excluded from a statute that purports to address sexually-coercive conduct. The State's response will likely be that the statute addresses a particular harm and that other constitutional and statutory protections are available for other configurations — but the doctrinal argument that the section fails the dignity standard is meaningful.

By presupposing that only a man can promise marriage and deceive, and by excluding the LGBTQIA+ community from its protective ambit, Section 69 BNS fails the constitutional standard the post-Puttaswamy / Navtej line has established.

The doctrinal background

To understand what is at stake, the background needs to be sketched.

The IPC-era jurisprudence on consent and misconception

Under the IPC framework, sexual intercourse obtained through deception had been addressed within the rape framework — particularly through Section 375's explanation 2 (consent), which provided that consent obtained by reason of misconception of fact could be vitiated. The Supreme Court line — including Pradeep Kumar Verma v. State of Bihar (2007), Deepak Gulati v. State of Haryana (2013), and Anurag Soni v. State of Chhattisgarh (2019) — had developed a complex jurisprudence on when a false promise to marry would vitiate consent.

The doctrine that had emerged was that not every breach of a promise to marry vitiates consent. Where the man had a genuine intention to marry at the time of the promise but subsequently changed his mind, the consent was not vitiated. Where the man had no intention to marry at the time of the promise and used the promise as a manipulation, the consent was vitiated and the conduct could amount to rape under the IPC framework.

What Section 69 BNS does to the jurisprudence

Section 69 attempts to bring this doctrinal architecture into a separate offence — but with structural choices that the IPC framework had not made:

• The offence is explicitly subsidiary to rape — operating where the conduct does not amount to rape under the parallel BNS rape provision.
• The "deceitful means" definition is broader than the IPC misconception jurisprudence — extending to false promise of employment, false promise of promotion, and identity-suppression marriage.
• The punishment (up to 10 years + fine) is substantial but lower than rape — recognising the doctrinal distinction while still treating the conduct as serious.
• The offence is gendered — preserving the male-offender / female-victim structure of the original rape framework.

The Kerala High Court PIL contests these choices on constitutional grounds. The substantive question — even if the PIL succeeds — is what replaces them: does the offence get read down to be gender-neutral, does it get struck down entirely, or does it get re-engineered in some intermediate way?

What the case will turn on

For practitioners following the matter, the substantive issues are:

The legislative competence and policy choice argument. The Centre will likely argue that Section 69's gendered structure reflects a policy choice — to address a specific historical pattern of harm against women — that is within Parliament's legislative competence and does not, of itself, fail the constitutional standard. The PIL's counter is that policy choices are constrained by constitutional limits; the structure of Section 69 crosses those limits in the LGBTQIA+ exclusion and the gender-binary framing.

The protective-legislation framing. Article 15(3) permits special provision for women. The State will lean on this to defend the gendered structure. The PIL's response will engage the boundaries of Article 15(3) — does protective legislation reach as far as criminal punishment with substantial deprivation of liberty for the man, on a gendered basis that excludes parallel protection for similarly-situated persons?

The remedy question. Even if the Court finds constitutional infirmities, the remedy is open. Reading down — interpreting Section 69 to apply gender-neutrally and to extend its protective ambit — would preserve the substance while addressing the constitutional concerns. Striking down — finding the section incurably defective — would leave the field to the rape framework and the IPC-era misconception jurisprudence (under BNS s. 63's successor). Either is doctrinally available.

The post-Navtej dignity framework. The PIL's strongest argument is the one that engages the Puttaswamy / Navtej line. The Court's reading of how that line applies to a gender-structured criminal offence will be doctrinally significant — and will likely influence other constitutional challenges to gender-structured provisions in the BNS / BNSS framework.

What the disposition will not, on any reading, do

It is worth being precise.

• The case will not foreclose the State's interest in addressing sexually-coercive conduct. The constitutional protection runs against State action; it does not foreclose State action that complies with the constitutional framework.
• The case will not, by itself, resolve the broader doctrinal architecture of the relationship between consent, deception and criminal punishment. That architecture has been developed through decades of jurisprudence; Vimal Vijay will engage a part of it, not all of it.
• The case will not produce a single-judgment doctrinal turn. Where a Kerala HC bench reads Section 69 down or strikes it, the disposition is appellate to the Supreme Court; the eventual settlement of the question is likely at the apex level.

What practitioners should track

For practitioners advising in this space:

• The Centre's response. The Union's defence of Section 69 will identify the policy choices the State relies on, and will frame the doctrinal questions for the substantive hearing.
• The Kerala HC's substantive disposition. The bench's engagement with the four constitutional arguments — and particularly with the Puttaswamy / Navtej line — will be the doctrinal contribution to the eventual settlement.
• The Supreme Court trajectory. Where the constitutional challenge is significant, the matter is likely to reach the Supreme Court. The Court's engagement with the section will be the eventual doctrinal resolution.

The bottom line

Vimal Vijay v. Union of India is the first significant constitutional challenge to Section 69 BNS. The arguments engage the post-Puttaswamy / Navtej dignity framework, the Article 14 / 15 equality framework, and the broader doctrinal architecture of how Indian criminal law treats the boundary between deception and rape. The High Court has issued notice. The substantive hearing is pending. The eventual disposition — whether the section is read down, struck down, or upheld — will shape not just the section but the broader question of how the BNS framework treats gender and sexual autonomy. For the constitutional bar, this is one of the cases of 2026 to watch.

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This is a preview, not a digest. The substantive hearing has not been concluded. The Centre's response and the Court's eventual disposition will shape the analytical framework; this piece sets out what is at stake on the record as it stands.