Discriminatory To Presume That Only Man Can Make Promise To Marry And Deceive: Kerala HC Issues Notice In Plea Challenging Constitutionality Of Section 69 Of BNS

The Kerala High Court has admitted and issued notice in a Public Interest Litigation (PIL) challenging the constitutionality of Section 69 of the Bharatiya Nyaya Sanhita (BNS), which criminalises sexual intercourse obtained through deceitful means, including false promises of marriage.

The petitioner, a practicing lawyer, who is also a member of the Kerala High Court Bar Association, argued that the provision is discriminatory and violates Article 14 guaranteed under the Constitution of India. 

The Bench of Acting Chief Justice A Muhamed Mustaque and Justice S. Manu issued notice to the Union of India, on September 9, and sought its response on the PIL.

The PIL filed through Advocate Shruthy N. Bhat contended that Section 69 is rooted in patriarchal and misogynistic assumptions, treating women as passive participants in sexual relationships and reinforcing the stereotype that they are incapable of making independent decisions regarding sexual acts. According to the petition, the law reduces women to a "non-entity" and disregards the fact that women can also actively initiate sexual relationships or deceit.

Section 69 of the BNS reads as follows:

"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 Petitioner contends, "A bare perusal of the provision presupposes that only a man can be a perpetrator and a woman a victim. Further, it presupposes that man alone is capable of deceiving; a man alone can make a promise to marry and that a man alone can initiate to have sexual intercourse. The myopic and regressive perception. of the legislature and their understanding of the relationship between a man and woman is very evident from the impugned provision."  

The petition further asserted that Section 69 cannot be justified as a "special provision" under Article 15(3) of the Constitution, which allows for protective measures for women. The petitioner argued that the provision lacks a clear purpose or evidence of any social backwardness it seeks to remedy, pointing out that the legislature has unfairly assumed that only men are capable of deceit in sexual relationships.

The PIL argued that Section 69 violates the right to equality (Article 14), the right to freedom of expression (Article 19), and the right to life and personal liberty (Article 21). It also fails to extend protection to members of the LGBTQ+ community, as the law only applies to heterosexual relationships between men and women.

The petitioner points out that the section also implies that only men hold positions of power, as it criminalises men making false promises of employment or promotion to induce sexual intercourse. It argues that this presumption discriminates against women and ignores the reality that women can also hold positions of authority and deceive others in relationships.

Another major concern raised in the petition is the vagueness of the term "identity" in Section 69, which criminalises sexual intercourse obtained by suppressing one's identity. The petitioner submitted that the lack of a clear definition could lead to varying interpretations, with "identity" potentially encompassing factors such as marital status, sexual orientation, caste, religion, or employment.

The petitioner also argued that the law penalises consensual sexual relationships outside of marriage, disregarding the complexity and unpredictability of such relationships. "The legislature cannot go forward and criminalise such acts if it does not end in marriage," the PIL read.

Cause Title: Vimal Vijay v. Union of India & Ors. [WP(C) No: 31598/ 2024]