[False Promise To Marry] PIL In Kerala HC Says Section 69 BNS Regressive Towards Woman's Status, Discriminates Against LGBTQ Community

For context, the section is as follows:

Section 69: Sexual intercourse by employing deceitful means, etc: Whoever by deceitful means or by making promise to marry a woman without any intention of fulfilling the same, and 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 the false promise of employment or promotion, inducement or marrying after suppressing identity.

The petitioner submits that the section suffers from notions of patriarchy and misogyny. The section only criminalises the act of a man who has sexual intercourse with a woman by deceitful means. This, the petitioner argues, implies that women are incapable of initiating sexual intercourse or being an active partner in taking decisions on sexual acts. Thus, the woman is reduced into a non-entity and is treated as a chattel of a man.

The petitioner argues that this section cannot be considered as a special provision protecting women. "It cannot be explained as to what backwardness the legislature intends to remedy or what specific purpose it intends to achieve by making such classification. There is no reason to presuppose that only men are capable of such deceit. Furthermore, women are also capable of proposing marriage to a man," the plea reads.

The petitioner further argues that the legislature arrived at the conclusion that only man can deceive- without any evidence or research. The petitioner also points that the protection of this section is unavailable to persons belonging to LGBT community.

The petitioner says that the provision by criminalising only the act of a man giving false promise of promotion or employment to have sexual intercourse, pre supposed that men alone can hold such positions of power and discriminates against women.

The petitioner also points that the section is vague. It has criminalized marrying after suppressing identity to have sexual intercourse as a crime. However, the word identity is not properly defined. The petitioner submits that it can mean anything, varying from marital status to sexual, personal or economic identity or caste, religion, race or employment.

The petitioner argues that the section intends to criminalise consensual sexual union between man and woman outside of marriage, whereas the relationship between a man and woman is complex, dynamic and very unpredictable. "The legislature cannot go forward and criminalise such acts if it does not end in marriage."

The petitioner also submits that the legislature, while including phrases like 'relationship in the nature of marriage' in Protection of Women From Domestic Violence Act has already accepted that concepts like live in relationship exist in our nation. Further court has held in Khushboov Kannaimal and Others (2010) that a live-in relationship between two consenting adults of opposite sex does not amount to an offence.

Thus, the petitioner argues that when such relationship exists, the act of the legislature penalizing such relationship is highly regressive and infringes the right of an individual to have sexual intercourse with a consenting partner.

The plea was moved by Advocates Shruthy N. Bhat, Vipin Narayan, Nanditha S.

Case Title: Vimal Vijay v Union of India and Another

Case No: WP(C) No: 31598/ 2024