Kerala High Court: Concealing Live-In Relationship and Child from Prospective Bride Constitutes ‘Sex by Deceitful Means’ Offence

The Kerala High Court recently determined that an individual who conceals an existing live-in relationship and/or a child born from said relationship prior to entering into a marriage with another woman, prima facie, falls under Section 69 of the Bharatiya Nyaya Sanhita (BNS) 2023, which prohibits sexual intercourse through deceitful means or by falsely promising to marry.

Justice A Badharudeen made this determination while denying an appeal filed by a man seeking anticipatory bail in a case filed at Feroke Police Station, Kozhikode.

These charges arose from a complaint filed by a woman whose marriage to the man had been scheduled. According to the complaint, the man and the de-facto complainant, both members of a Scheduled Caste community, agreed to marry.

A marriage-fixing ceremony was held and the de-facto complainant's family spent a total of ₹10 lakh on the event. The de-facto complainant claims that the man misrepresented himself as single and failed to inform her that he was living with another woman and had a three-year-old child from that relationship.

Following the marriage-fixing ceremony, the de-facto complainant traveled to Wayanad at the man's request and stayed with him in a hotel.

There, he coerced her into having sex and she agreed to participate in order to facilitate their impending marriage. During the proceedings before the Court, the man contended that Section 69 could not apply to him as the provision requires a person to renege on their promise to marry and in the instant case he was willing to marry the de-facto complainant.

After considering the arguments presented by both sides, the Court evaluated the scope of Section 69 BNS. The Court indicated that Section 69 criminalizes sexual intercourse not constituting rape in two circumstances.

The first circumstance involves obtaining consent for sexual intercourse through deceitful means; the second circumstance involves obtaining consent through a promise to marry made without any intention of fulfilling it.

The Court concluded that the allegations against the man fell into the first category regardless of his claim that he was willing to marry the de-facto complainant, as he intentionally hid information concerning his child and live-in relationship while obtaining her consent for sexual intercourse.

The Court further noted that even the marriage was scheduled on the assumption that the man was unmarried and was not involved in any other type of relationship akin to marriage.

Therefore, finding that the alleged offenses were prima facie established, the Court denied the man's appeal and ordered him to report to the investigating officer.