BNS s. 69: Sexual intercourse by deceitful means, including a false promise to marry

Case

Criminal Appeal No. 336 of 1996

Bench

N. Santosh Hegde, B.P. Singh (judgment by B.P. Singh, J.)

Provisions

IPC s. 375 (rape; Secondly: without her consent) = BNS s. 63(ii)
IPC s. 90 (consent given under fear or misconception) = BNS s. 28(a)
BNS s. 69 (sexual intercourse by deceitful means or by a promise to marry without any intention of fulfilling it, not amounting to rape; up to 10 years and fine; no IPC equivalent)

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Headnote

Sensitive matter. Sexual-offence matter (rape alleged on a promise of marriage). The complainant is not named anywhere in this file, and her name is omitted from every extract.

Rape · Consent obtained on a promise to marry · Misconception of fact · IPC s. 90 (BNS s. 28) · IPC s. 375 Secondly (BNS s. 63(ii))

The case, in the Court's words

The trial court as well as the High Court have concurrently held that though the prosecutrix [...] had consented to sexual intercourse with the appellant, the consent was obtained by fraud and deception inasmuch as the appellant induced her to consent on the promise that he shall marry her. [SCR p. 234]

Held

1. It therefore appears that the consensus of judicial opinion is in favour [...] of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a misconception of fact [...] the meaning of the Code. [SCR p. 243]
2. In the ultimate analysis, the tests laid down by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, [...] because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them. [SCR p. 243]
3. In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was [...] given in consequence of such misconception. [SCR p. 245]
4. In such circumstances the promise loses all significance, particularly when they are over come with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. [SCR p. 245]

Result

In the result, this appeal must succeed, and is accordingly allowed. The impugned judgment and order convicting and sentencing the appellant for the [...] offence punishable under Section [...] IPC is set aside, and the appellant stands acquitted of the charge. [SCR p. 246]

Editorial note: subsequent treatment

Followed in Deepak Gulati v. State of Haryana (2013), which applies it, and in Pramod Suryabhan Pawar v. State of Maharashtra (2019), which quotes its two-condition passage. Deelip Singh @ Dilip Kumar v. State of Bihar, quoted in Naim Ahamed v. State (NCT of Delhi) (2023), read Uday as not laying down that a promise to marry can never amount to a misconception of fact.

Case

Criminal Appeal No. 2322 of 2010

Bench

B.S. Chauhan, Dipak Misra (judgment by B.S. Chauhan, J.)

Provisions

IPC s. 375 (rape; Secondly: without her consent) = BNS s. 63(ii)
IPC s. 90 (consent given under fear or misconception) = BNS s. 28(a)
BNS s. 69 (sexual intercourse by deceitful means or by a promise to marry without any intention of fulfilling it, not amounting to rape; up to 10 years and fine; no IPC equivalent)
IPC s. 365 (kidnapping or abducting with intent secretly and wrongfully to confine)

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Headnote

Sensitive matter. Sexual-offence matter (rape alleged under IPC s. 376, now BNS s. 63). The complainant is not named in this file or in any extract.

Rape · Consent obtained on a false promise of marriage · Breach of promise distinguished from false promise · IPC s. 90 (consent under misconception of fact) · BNS s. 69

Held

1. This Court considered the issue involved herein at [...] length in the case of [...] and came to the conclusion that in the event that the accused's promise is not false and has not been made [...] with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act(s) would not amount to rape. [para 16]
2. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. [...] There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, [...] and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. [para 18]
3. [...] where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. [para 18]
4. Hence, it is evident that there must be adequate evidence to show that at the relevant time, i.e. at initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. [...] Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her. [para 21]

Result

Therefore, the appeal succeeds and is allowed. His conviction and sentences awarded by the courts below are set aside. [para 25]

Editorial note: subsequent treatment

Paragraphs 18 and 21 are quoted and relied on in later Supreme Court judgments, including Pramod Suryabhan Pawar v. State of Maharashtra (2019), Naim Ahamed v. State (NCT of Delhi) (2023) and Mahesh Damu Khare v. State of Maharashtra (2024).

Case

Criminal Appeal No. 1165 of 2019 (arising out of SLP (Crl.) No. 2712 of 2019)

Bench

Dhananjaya Y. Chandrachud, Indira Banerjee (judgment by Dhananjaya Y. Chandrachud, J.)

Provisions

Indian Penal Code, 1860, s. 375 (Secondly: without her consent), s. 90 and s. 376 (now Bharatiya Nyaya Sanhita, 2023, s. 63(ii), s. 28(a) and s. 64; BNS s. 69 covers the promise-to-marry case that does not amount to rape)
Code of Criminal Procedure, 1973, s. 482 (inherent powers; quashing of FIR); now Bharatiya Nagarik Suraksha Sanhita, 2023, s. 528 (owner-supplied equivalence)

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Headnote

Sensitive matter. Sexual-offence matter: an FIR alleging rape on a promise of marriage (IPC s. 375 and 376). The complainant is not named in this file or in any extract; the text refers to her only as the complainant. The judgment also decides SC/ST Act allegations, which are not extracted here.

Rape and consent · IPC s. 375 Secondly (BNS s. 63(ii)) · IPC s. 90 misconception of fact (BNS s. 28(a)) · False promise of marriage · Breach of promise distinguished from false promise · Quashing of FIR under CrPC s. 482

The case, in the Court's words

The present proceedings concern an FIR registered against the appellant under Sections 376, 417, 504, and 506(2) of the IPC and Sections 3(1) (u), (w) and 3(2) (vii) of SC/ST Act. [para 9]

Held

1. This Court has repeatedly held that consent with respect to Section 375 of the IPC involves an active understanding of the circumstances, actions and consequences of the proposed act. An individual who makes a reasoned choice to act after evaluating various alternative actions (or inaction) as well as the various possible consequences flowing from such action or inaction, consents to such action. [para 12]
2. In the present case, the “misconception of fact” alleged by the complainant is the appellant’s promise to marry her. Specifically in the context of a promise to marry, this Court has observed that there is a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled. [para 14]
3. To summarise the legal position that emerges from the above cases, the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, [...] given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman’s decision to engage in the sexual act. [para 18]
4. The allegations in the FIR do not on their face indicate that the promise by the appellant was false, [...] There is no allegation in the FIR that when the appellant promised to marry the complainant, it was done in bad faith or with the intention to deceive her. [para 20]

Result

For the above reasons, we allow the appeal and set aside the impugned judgement and order of the High Court dated 7 February 2019. The FIR dated 17 May 2016 is quashed. [para 23]

Editorial note: subsequent treatment

Set out and applied in Mahesh Damu Khare v. State of Maharashtra (2024 INSC 897), which sets out paras 14, 16 and 18. Cited in Prashant v. State of NCT of Delhi (2024 INSC 879) and Jaspal Singh Kaural v. State of NCT of Delhi (2025 INSC 457).

Case

Criminal Appeal No. 257 of 2023

Bench

Ajay Rastogi, Bela M. Trivedi (judgment by Bela M. Trivedi, J.)

Provisions

IPC s. 375 (rape; Secondly: without her consent) = BNS s. 63(ii)
IPC s. 90 (consent given under fear or misconception) = BNS s. 28(a)
BNS s. 69 (sexual intercourse by deceitful means or by a promise to marry without any intention of fulfilling it, not amounting to rape; up to 10 years and fine; no IPC equivalent)
Indian Evidence Act, 1872 s. 114A (presumption as to absence of consent); now Bharatiya Sakshya Adhiniyam, 2023, s. 120 (owner-supplied equivalence)

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Headnote

Sensitive matter. Sexual-offence matter (rape, IPC s. 375 and 376). The complainant and the minor child are not named anywhere in this case file.

Rape · BNS s. 69 · IPC s. 375 and s. 90 (BNS s. 63(ii) and s. 28(a)) · Promise to marry: false promise and breach of promise · Consent under misconception of fact

The case, in the Court's words

The Sessions Court while holding the appellant-accused guilty for the offence under Section 376 of IPC had sentenced him to undergo rigorous imprisonment for a period of 10 years and pay fine of Rs.50,000/-, in default thereof to suffer further imprisonment for a period of one year. [para 3]

Held

1. It cannot be gainsaid that a consent given by a person would not be a consent as intended by any Section of the Indian Penal Code, if such consent was given by the person under the fear of injury, or under a misconception of fact as contemplated in Section 90 IPC. Further, Section 375 also describes certain acts which if committed by the accused under the circumstances mentioned therein, as the commission of ‘Rape’, even though committed with the consent of the prosecutrix. [para 11]
2. In our opinion, the expression “misconception of fact” contained in Section 90 IPC is also required to be appreciated in the light of the Clauses – contained in Section 375 IPC, more particularly the Clauses - Thirdly, Fourthly and Fifthly thereof, when the accused is charged for the offence of ‘rape’. The circumstances described in the said three Clauses are wider than the expression “misconception of fact”, as contemplated in Section 90 of IPC. [para 11]
3. The exposition of law in this regard is discernible in various decisions of this Court, however the application of such law or of such decisions would depend upon the proved facts in each case, known as legal evidence. The ratio laid down in the judgements or the law declared by this Court do provide the guidelines to the judicial mind of the courts to decide the cases on hand, but the courts while applying the law also have to consider the evidence before them and the surrounding circumstances under which the alleged offences are committed by the accused. [para 12]
4. [...] there is a difference between giving a false promise and committing breach of promise by the accused. In case of false promise, the accused right from the beginning would not have any intention to marry the prosecutrix and would have cheated or deceited the prosecutrix by giving a false promise to marry her only with a view to satisfy his lust, whereas in case of breach of promise, one cannot deny a possibility that the accused might have given a promise with all seriousness to marry her, and subsequently might have encountered certain circumstances unforeseen by him or the circumstances beyond his control, which prevented him to fulfill his promise. So, it would be a folly to treat each breach of promise to marry as a false promise and to prosecute a person for the offence under Section 376. [para 20]

Result

For the reasons stated above, the impugned judgments and orders passed by the High Court and the Sessions Court are set aside, except the direction for the payment of compensation to the prosecutrix. The appellant-accused is acquitted from the charges levelled against him and is directed to be set free forthwith. The appeal stands allowed accordingly. [para 26]

Editorial note: subsequent treatment

Cited in Mahesh Damu Khare v. State of Maharashtra (2024 INSC 897), which follows it, and in 2024 INSC 181 and 2025 INSC 457 (Jaspal Singh Kaural v. State of NCT of Delhi). The extracts above are the Court's own paragraphs, not quoted passages.

Case

Criminal Appeal No. 4882 of 2024 (@ SLP (Crl.) No. 4326 of 2018)

Bench

B.V. Nagarathna, Nongmeikapam Kotiswar Singh (judgment by Nongmeikapam Kotiswar Singh, J.)

Provisions

IPC s. 375 (rape; Secondly: without her consent) = BNS s. 63(ii)
IPC s. 90 (consent given under fear or misconception) = BNS s. 28(a)
BNS s. 69 (sexual intercourse by deceitful means or by a promise to marry without any intention of fulfilling it, not amounting to rape; up to 10 years and fine; no IPC equivalent)
CrPC s. 482 (quashing of FIR)
IPC s. 420 (cheating)

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Headnote

Sensitive matter. Sexual-offence matter. The case history also mentions a complaint about a minor under the POCSO Act. The complainant, her children and the minor are not named in any extract; the extracts state only the law.

BNS s. 69 · IPC s. 90 (BNS s. 28) · Promise to marry and consent under misconception of fact · Long consensual relationship · Quashing of FIR

Held

1. In our view, if a man is accused of having sexual relationship by making a false promise of marriage and if he is to be held criminally liable, any such physical relationship must be traceable directly to the false promise made and not qualified by other circumstances or consideration. [...] Thus, unless it can be shown that the physical relationship was purely because of the promise of marriage, thereby having a direct nexus with the physical relationship without being influenced by any other consideration, it cannot be said that there was vitiation of consent under misconception of fact. [para 22]
2. It must also be clear that for a promise to be a false promise to amount to misconception of fact within the meaning of Section 90 of IPC, it must have been made from the very beginning with an intention to deceive the woman to persuade her to have a physical relationship. [para 23]
3. It may be also noted that there may be occasions where a promise to marry was made initially but for various reasons, a person may not be able to keep the promise to marry. If such promise is not made from the very beginning with the ulterior motive to deceive her, it cannot be said to be a false promise to attract the penal provisions of Section 375 IPC, punishable under Section 376 IPC. [para 24]
4. [...] does not indicate the intention at the initial stage itself to make the promise falsely to marry the complainant. Making an allegation of non-fulfilment of promise to marry without undue delay by the promissee would, on the other hand, be an indicator of a false promise being made from the initial stage. [para 25]
5. We, however, make it clear that our decision in this case and observations made are to be understood in the factual matrix before this Court. Every case must be decided on its own facts and circumstances, [...] every decision relating to human relationships must be based on the peculiar facts and circumstances obtaining in the particular case. [para 33]

Result

Consequently, the appeal is allowed and the impugned judgement and order dated 12.02.2018 passed by the Bombay High Court in Criminal Writ Petition (CRWP) No. 5190 of 2017 is set aside. Resultantly, the FIR being CR No. 302 of 2017 dated 15.08.2017 registered against the appellant with the Kharghar Police Station, Navi Mumbai under Sections 376, 420, 504 and 506 of the Indian Penal Code is quashed. [para 36]

Editorial note: subsequent treatment

Follows Pramod Suryabhan Pawar, Naim Ahamed, Deepak Gulati and Dhruvaram Sonar. Cited as (2024) 11 SCC 398 in Samadhan v. State of Maharashtra (24 November 2025).

Case

Criminal Appeal of 2026 (arising out of Special Leave Petition (Crl.) No. 4452 of 2025)

Bench

B.V. Nagarathna, Ujjal Bhuyan (judgment by B.V. Nagarathna, J.)

Provisions

Indian Penal Code, 1860, s. 376(2)(n) (rape repeatedly on the same woman; the FIR and chargesheet); now Bharatiya Nyaya Sanhita, 2023, s. 64(2)(m)
Indian Penal Code, 1860, s. 375 (rape; the clause Secondly consent point is discussed in paras 17 to 23); now Bharatiya Nyaya Sanhita, 2023, s. 63 (clause (ii), without her consent)
Indian Penal Code, 1860, s. 90 (misconception of fact; quoted from Mahesh Damu Khare in para 23); now Bharatiya Nyaya Sanhita, 2023, s. 28(a)
Constitution of India, Article 226 (writ petition before the High Court seeking quashing of the FIR, paras 2 and 8)

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Headnote

Sensitive matter. Sexual-offence matter: an FIR under IPC s. 376(2)(n) alleging rape on a false promise of marriage, quashed by this Court. The complainant was a married woman with divorce proceedings pending, which the Court treats as central (paras 19 and 24). The complainant is not named in this file or in any extract; she is referred to only as the complainant. The judgment also mentions a child, who is not named or extracted.

Rape on false promise of marriage · Complainant already married, divorce pending: promise of marriage not legally enforceable (Hindu Marriage Act s. 5(i)) · IPC s. 376(2)(n) (BNS s. 64(2)(m)) · IPC s. 375 clause Secondly (BNS s. 63) · IPC s. 90 misconception of fact (BNS s. 28(a)) · Consensual relationship turning acrimonious · Quashing of FIR and chargesheet · Non-reportable

The case, in the Court's words

On 06.02.2025, the complainant-respondent No.3 lodged an FIR No.213/2025 dated 06.02.2025 at Police Station Sarkanda at District Bilaspur, Chhattisgarh under Section 376(2)(n) of the IPC against the accused-appellant alleging that he had raped her on a false promise of marriage. [para 5]

Held

1. It has been time and again settled by this Court, that the mere fact that the parties indulged in physical relations pursuant to a promise to marry will not amount to a rape in every case. An offence under Section 375 of the IPC could only be made out, if promise of marriage was made by the accused solely with a view to obtain consent for sexual relations without having any intent of [...] fulfilling said promise from the very beginning and that such false promise of marriage had a direct bearing on the prosecutrix giving her consent for sexual relations. [para 18]
2. The facts of the present case unmistakably indicate towards a classic case of a consensual relationship turning acrimonious. Upon perusal of the records of the case, it is evident that the complainant-respondent No.3 is a married lady with a ten years old child. The said marriage was solemnized on 02.06.2011 and although divorce proceedings are currently pending adjudication between her and her husband, by no stretch of imagination can it be held that the complainant-respondent No.3 was eligible for being married with the accused-appellant on 18.09.2022 [para 19]
3. such a promise would not be legally enforceable or even capable of being acted upon as the victim herself was not eligible for marriage, neither on the date of the first alleged act of offence i.e. 18.09.2022 nor on any subsequent dates wherein the parties indulged in the sexual activities, till the point of the date of registration of FIR i.e. 06.02.2025. The said embargo arises from sub-clause (i) of Section 5 of the Hindu Marriage Act,1955 which categorically prohibits marriage between two individuals if either of them have a living spouse. [para 19]
4. it is an admitted fact that the complainant-respondent No.3, within the first initial meetings told the accused-appellant that she was a married woman with divorce proceedings pending before the Family Court. Therefore, in the same breath, she cannot be allowed to claim and allege that she was also coaxed by the accused-appellant into having a physical relationship with him on the false pretext of marriage as the two facts cannot stand together on the same plane and simultaneously as both are antagonistic and antithetical to each other. [para 24]
5. Such genuine cases that deserve prosecution of the accused must be clearly demarcated from the litigation that arises from the cases of consensual relationships between consenting adults going acrimonious on account of dispute and disagreement or a future change of mind. [para 22]
6. In fact, we find that the allegation of rape on false pretext of marriage even when taken on its face value, does not amount to an offence of rape and hence not liable for punishment under Section 376(2)(n) of the IPC in the instant case [para 27]

Result

In view of the aforesaid discussion and keeping the judicial dicta laid down by this Court in mind we set aside the impugned order dated 03.03.2025 of the High Court and consequently, FIR No.213/2025 dated 06.02.2025 registered with Sarkanda Police Station at district Bilaspur and the Chargesheet No.269/2025, and the consequent proceedings arising out of the said proceedings in Sessions Case No.89/2025 are quashed. The appeal is allowed in the aforesaid terms. [para 28]

Editorial note: subsequent treatment

The judgment is non-reportable and is not in the Reports. It relies on Mahesh Damu Khare v. State of Maharashtra (2024) 11 SCC 398, Prashant v. State of NCT of Delhi (2025) 5 SCC 764 and Samadhan v. State of Maharashtra (2025 SCC OnLine SC 2528), and applies State of Haryana v. Bhajan Lal (1992 Suppl (1) SCC 335) (paras 23 to 27). The prosecution was under IPC s. 376(2)(n).

Case

Special Leave Petition (Crl.) No. 11526 of 2026 (printed as Crl. A. @ SLP Crl. 11526 of 2026)

Bench

J. B. Pardiwala, K. Vinod Chandran (judgment by Not stated in the printed order; signed by both judges)

Provisions

Bharatiya Nyaya Sanhita, 2023, s. 69 (deceitful means, or a promise to marry a woman without any intention of fulfilling it, and sexual intercourse not amounting to rape; the offence in the FIR, para 2)
Indian Penal Code, 1860, s. 375 read with s. 90 (the earlier prosecution of a false promise of marriage, para 4); now Bharatiya Nyaya Sanhita, 2023, s. 63 (rape) and s. 28(a) (consent given under a misconception of fact)

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Headnote

Sensitive matter. Sexual-offence matter: a Supreme Court order quashing an FIR under BNS s. 69 (promise to marry, later not kept) registered at Vadodara. The complainant is not named in this file or in any extract; she is referred to only as the complainant or the second respondent. The order also refers to the complainant's mother, who is not named.

Promise to marry; deceitful means (BNS s. 69) · BNS s. 69 · IPC s. 375 read with s. 90 (BNS s. 63 and s. 28(a)) · Promise made in good faith, later not kept · Consensual relationship · Quashing of FIR · Reportable

The case, in the Court's words

The appellant is an accused under Section 69 of the Bhartiya Nyaya Sanhita (BNS). [...] The second respondent is the complainant, who alleged that under the pretext of the promise to marry, the appellant entered into physical relations with the second respondent and later resiled from his promise on the allegation that his mother was not favourable to such a marriage with the second respondent. [para 2]

Held

1. The BNS by incorporating Section 69 brought in a separate offence carving out the fraudulent and deceitful conduct as spoken of therein from the grave offence of rape, while at the same time providing a penalty for the deceptive conduct alleged therein. [para 4]
2. The word employed “deceitful means or by making a promise to marry to a woman without any intention of fulfilling the same” brings in the same rigor of the promise having been given with an intention of never being fulfilled, which is the deceitful conduct sought to be punished. [para 4]
3. The statements made in the complaint clearly indicate a consensual relationship and we do not find anything to find a deceitful conduct, [...] the appellant having induced the complainant into sexual intercourse, which she succumbed to only on the promise to marry. [para 5]
4. On the mere communication of the desire of the appellant to marry her, we are unable to find the appellant having used any deceitful means. In any event, the very complaint is that the appellant refused to marry her later, because his mother did not permit it, which indicates that the promise was made with all good intention, if at all it was made. [para 6]

Result

We hence quash FIR bearing No.11196030250292 dated 20.05.2025, registered at Sayajiganh Police Station, Vadodara City, Gujarat. [para 7]

Editorial note: subsequent treatment

The order is marked REPORTABLE on its first page. The High Court had relied on Deepak Gulati v. State of Haryana (2013) 7 SCC 675; this Court quotes para 24 of that decision (para 3) and describes its holding under IPC s. 90 (para 4).