“A criminal law must punish deliberate fraud, not the failure of human relationships; otherwise, justice risks becoming coercion.”

Introduction: Protection Versus Over-Criminalisation

Section 69 of the Bharatiya Nyaya Sanhita criminalises sexual intercourse obtained through “deceitful means,” including false promise of employment or promotion or false promise of marriage. The punishment can extend to ten years and fine. The provision was introduced to address exploitation arising from fraudulent inducement. However, its broad language, severe punishment, and absence of procedural safeguards have created a legal framework where consensual adult relationships may be retrospectively criminalised. The consequences of mere allegation namely arrest, stigma, professional loss, and prolonged litigation often precede judicial determination. This raises a fundamental concern: when the process itself inflicts irreversible harm, the criminal justice system risks imposing punishment before guilt is established.

The challenge, therefore, is not the objective of preventing deception, but the manner in which the law operates. Without clear thresholds and safeguards, the provision may blur the line between deliberate fraud and relationship failure, thereby converting emotional disputes into criminal litigation.

Understanding Section 69: Consent and Retrospective Criminalisation

Section 69 is premised on the idea that consent obtained through deception is invalid. In promise-to-marry cases, the allegation is that consent to intimacy was granted because of an assurance of marriage. However, relationships evolve. Intentions change. Circumstances intervene. In the Indian social context, marriage decisions are shaped not only by individuals but also by family approval, caste considerations, religious differences, financial constraints, and compatibility concerns. A relationship that begins with genuine intention to marry may later fail due to these factors.

Retrospectively treating such breakdowns as deception risks criminalising relationship failure rather than fraudulent intent.

In Pramod Suryabhan Pawar v. State of Maharashtra, the Supreme Court clarified that consent is vitiated only when the promise to marry was false at the very inception and the consent was given solely on account of that misconception. A mere failure to fulfil the promise at a later stage, by itself, does not constitute an offence.

In Dhruvaram Murlidhar Sonar v. State of Maharashtra, the Court drew a sharper distinction, emphasising that there is a fundamental difference between rape and consensual relationships, and equally between a false promise and a promise that could not ultimately be fulfilled due to subsequent circumstances beyond control.

In Deepak Gulati v. State of Haryana, the Supreme Court cautioned that courts must carefully examine whether the promise was dishonest from the outset and whether the consenting party fully understood the nature and implications of the relationship.

More recently, in Mahesh Damu Khare v. State of Maharashtra (2024), the Court reiterated that criminal intent at inception remains the decisive factor, and warned against converting consensual relationships into criminal prosecutions merely because they later failed.

The Karnataka High Court, noting the “mushrooming” of cases under Section 69, highlighted a troubling pattern

"when a relationship ends in a breakup, the man is in lock up”.

These judicial observations reflect growing concern that retrospective interpretation of consent risks misuse.

Distinction from Rape: Consent and Inherent Uncertainty

Rape involves absence of consent, coercion, force, or exploitation of vulnerability. It is an act where autonomy is overpowered. Section 69, however, operates in a fundamentally different domain. It concerns consensual relationships where both parties voluntarily engage over time. The alleged victim retains an inherent choice to refuse intimacy at any stage. Participation occurs within a relationship where marriage remains a possibility, not a guarantee.

Unlike rape, which requires force or coercion, Section 69 addresses situations where no force is alleged and consent exists at the time of the act. Retrospectively converting such consent into criminal liability risks equating emotional disappointment with coercion. It also undermines personal autonomy. Not every morally questionable act is criminal. A decision not to marry, though emotionally painful, does not automatically become legally punishable. Criminal law must distinguish between moral expectations and deliberate fraud.

Deception Is Gender-Neutral

Deception does not depend on physical force. It can be committed by any individual irrespective of gender. Unlike offences involving coercion, deception is inherently neutral. A gender-specific provision presumes one party as victim and the other as perpetrator, which may not reflect relational realities. A balanced legal framework must recognise that misrepresentation, concealment, or withdrawal from commitments can occur on either side. Gender neutrality would ensure fairness and align the provision with constitutional equality.

Autonomy, Agency, and the Risk of Over-Protection

Section 69, in its present form, rests on an implicit assumption that consent within a relationship can be easily vitiated, thereby portraying women as lacking the capacity to make informed, independent decisions about their personal lives. This approach risks placing women on a lower pedestal, as if they are unable to assess consequences or exercise judgment in intimate relationships. Such a premise is inconsistent with contemporary realities, where women are increasingly independent, self-reliant, and assertive—leading from the front in professional, social, and personal spheres, and fully capable of determining their own choices and futures.

By framing consent in a manner that presumes inherent vulnerability, the law risks undermining the very autonomy it seeks to protect. More importantly, this assumption can create space for misuse, where the provision may be invoked not only for protection but also as leverage—opening avenues for coercion, manipulation, and pressure tactics. In effect, what is intended as a safeguard can, in certain situations, be used as a means of arm-twisting, reinforcing the need for a more balanced, evidence-based approach that recognises both protection and personal agency.

Extortion and Coercive Settlements

The severity of consequences under Section 69 creates a coercive environment once a complaint is filed. The accused faces arrest, stigma, and professional consequences. This pressure often leads to settlement negotiations. Demands may include monetary compensation, pressure to marry leading to withdrawal in exchange for compromise and/or change of statement during trial. Many cases collapse after such settlements, with complainants turning hostile. However, reputational damage, financial loss, and psychological distress have already occurred. The criminal process thus becomes leverage for negotiation rather than adjudication.

Process as Punishment

Even before trial, the accused may face investigation, arrest or anticipatory bail proceedings, social stigma, immigration difficulties and legal expenses. Professional opportunities may diminish. Personal relationships may be affected. Even if acquitted, reputational damage remains. The presumption of innocence becomes overshadowed by consequences of allegation. This transforms the criminal process itself into punishment.

Impact on Families and Social Consequences

The consequences extend beyond the individual. Families face humiliation, financial strain, and psychological distress. Parents often experience anxiety and health deterioration. Social standing may be affected. The impact of criminal proceedings in such cases therefore extends far beyond the alleged conduct.

Evidentiary Challenges

Determining intent at inception requires careful examination of communications, conduct, and relationship history. However, investigations often proceed without structured evidentiary standards. Complaints may be registered without examining call records, digital messages, or statements from both sides. This allows retrospective allegations without objective verification. Structured investigation standards are therefore necessary.

Need for Reform

Gender Neutrality and Narrow Definition of Deception

Section 69 should be reformulated as a gender-neutral provision and restricted to cases involving clear, demonstrable criminal intent. Deception, by its nature, is not gender-specific and may be committed by any individual irrespective of gender. The law should therefore avoid presumptions and instead focus on conduct. Only serious and material misrepresentation—such as concealment of an existing marriage, false identity, impersonation, or deliberate fraudulent inducement solely to obtain consent—should attract criminal liability. Situations arising out of relationship breakdown, change of intention, incompatibility, parental opposition, caste or community barriers, or failure of marriage negotiations should be expressly excluded. These are social realities rather than criminal deception. The punishment should also be proportionate and significantly lesser than the existing penalty, acknowledging that the underlying relationship involved consent and not coercion. Criminal law must distinguish between deliberate fraud and emotional expectations in consensual relationships.

The provision should be re-drafted to remove any implicit presumption that one party lacks agency. Legal interpretation must shift from a protectionist approach to an autonomy-based framework, where individuals are treated as equal decision-makers rather than inherently vulnerable participants. This would align the law with constitutional principles of dignity and equality

Mandatory Preliminary Inquiry

A structured preliminary inquiry should be made mandatory before registration of FIR under Section 69. Given the consensual nature of relationships covered by this provision, immediate criminal registration based solely on allegation risks misuse. Investigators should be required to examine the timeline of the relationship, communication between parties, and surrounding circumstances. Statements of both parties should be recorded at the initial stage. The inquiry should determine whether there is prima facie evidence of deception at inception. If such evidence is absent, the complaint should be closed at the earliest stage. This safeguard would prevent unnecessary criminalisation of relationship disputes and reduce coercive litigation.

Minimum Investigation Standards

Investigation in Section 69 cases should follow defined evidentiary standards. Authorities should examine call detail records, digital communication including WhatsApp messages from both sides, emails, photographs, and conduct of parties over time. The entire relationship history should be considered rather than isolated allegations. Objective evidence should be required to establish deception at inception. Without corroborative material, prosecution should not proceed. Such minimum standards would ensure that consensual relationships are not retrospectively converted into criminal cases based solely on oral allegations.

Compensation Only After Charge Sheet

Interim compensation, if any, should be granted only after filing of the charge sheet and judicial satisfaction that a prima facie case exists. Grant of compensation at the complaint stage, before investigation, may unintentionally create incentives for misuse. A structured approach ensuring compensation only after scrutiny would balance protection with fairness. This would also ensure that financial relief mechanisms are based on evidence rather than allegation alone.

Recovery of Compensation if Allegation False

Where allegations are ultimately found to be false or malicious, any compensation granted should be recoverable with interest. Courts should also have authority to recover litigation costs and damages suffered by the wrongly accused. Such recovery mechanisms would discourage misuse and ensure accountability. The objective is not to deter genuine complaints but to prevent exploitation of criminal law for coercive settlement.

Equal Consequences for False Complaints

Accountability for malicious prosecution is essential for maintaining balance. Where a complaint is found to be deliberately false, appropriate penal consequences should follow. This would ensure that criminal law is not used as a pressure tactic. Equal consequences for misuse would reinforce fairness and deter coercive litigation. Such safeguards would strengthen confidence in the justice system while protecting genuine victims.

Compensation for Wrongfully Accused

Where proceedings terminate in discharge, quashing, or acquittal for lack of evidence, courts should have explicit power to award compensation to the wrongly accused. The consequences of criminal prosecution—reputational harm, legal costs, loss of employment opportunities, and social stigma—are substantial. A statutory mechanism for compensation would recognise these harms and restore balance. Compensation should include litigation expenses and demonstrable financial loss where appropriate.

Identity Protection and Disclosure Mechanism

The identity of the accused should remain confidential until charges are framed or a prima facie case is established. This would protect the presumption of innocence and prevent irreversible reputational harm. Conversely, where allegations are found malicious after judicial determination, courts may consider limited disclosure orders to restore reputational balance. Such disclosure should be carefully regulated to prevent misuse while ensuring fairness.

Confidential Registry Mechanism

A confidential judicial registry or identifier system may be introduced to assist courts in identifying patterns of repeated complaints of similar nature. Such a mechanism, accessible only to courts and investigating authorities, would allow assessment of multiple proceedings without compromising privacy. This would help in informed judicial decision-making while preventing repetitive litigation and potential misuse.

Early Closure of False Cases

If investigation reveals absence of deception, proceedings should be closed at the earliest stage. Time-bound preliminary inquiry and early judicial scrutiny would prevent prolonged harassment. Consensual relationship disputes lacking evidence of fraud should not continue through lengthy criminal trials. Early closure would protect both judicial resources and individual rights.

Conclusion

Section 69 addresses a legitimate concern regarding exploitation through deception. However, its broad formulation risks criminalising consensual relationships, enabling coercive settlements, and imposing punishment through process rather than conviction. Courts have repeatedly emphasised that disappointment in relationships cannot be equated with deception and that failure of marriage negotiations does not automatically establish criminal intent. A balanced reform like making the provision gender-neutral, narrowing its scope to serious deception involving criminal intent, reducing punishment, and introducing structured procedural safeguards would preserve its protective purpose while ensuring fairness. Such reform would align the provision with principles of autonomy, proportionality, and due process, ensuring that criminal law addresses genuine fraud without intruding into consensual adult relationships

“Justice must protect the vulnerable, but it must also guard against the law itself becoming a source of injustice.”

Reflections of a Falsely Accused Person