In a recent order, a Supreme Court Bench of Justices JB Pardiwala and K Vinod Chandran quashed an FIR registered under Section 69 of the Bharatiya Nyaya Sanhita, 2023 (BNS), the provision that criminalises sexual intercourse obtained through deceitful means, including a false promise of marriage.
The complainant's case was that the accused had entered into a physical relationship with her on the assurance of marriage and later reneged because his mother would not consent to the match. The Supreme Court held that this refusal, occasioned by parental objection, indicated that the original promise had been made "with all good intention" and that no deceit within the meaning of Section 69 was therefore made out.
The outcome may well be defensible on the specific facts before the Court. But the reasoning by which the Court arrived at it deserves closer scrutiny, because it risks handing every accused under Section 69 a ready-made script: promise marriage, proceed to a physical relationship and if the matter later falls apart, simply point to a disapproving parent. What follows is a critical examination of why this reasoning is troubling and why the defence of "family opposition" ought to invite more judicial suspicion than it currently does.
Section 69 was introduced to carve out, as a distinct and lesser offence, conduct that falls short of rape but nonetheless involves obtaining consent through deceit, most commonly, a promise to marry made without any real intention of honouring it. The settled test - inherited from the pre-BNS jurisprudence in cases such as Deepak Gulati v. State of Haryana and later reaffirmed in decisions like Pramod Suryabhan Pawar v. State of Maharashtra - requires the prosecution to show that the promise was false from its inception, that the accused never intended to keep it and that this false promise had a direct causal link to the complainant's consent.
Applying this test, the Court in Kalyani found two things fatal to the complaint: first, that the complainant's own account did not tie her initial consent to any promise of marriage at all; and second, that the subsequent refusal to marry, attributed to maternal objection, was itself evidence that the promise had been genuine when made, since a person who intends to deceive typically does not need an external excuse to withdraw.
The difficulty lies not in the legal test itself, which is well established, but in how readily "family opposition" is treated as proof of good faith rather than as a fact requiring further inquiry.
Consider the sequence of events implicit in such cases. An adult man, fully capable of assessing his own domestic circumstances, proceeds to promise marriage and enter a physical relationship without first ascertaining whether his own family would consent to the union. He is, at every stage, the person best placed to know the temperament of his household. If he did not consult his mother before making the promise, that omission is his own; the resulting refusal cannot be treated as an "unavoidable circumstance" that fell upon him from outside, because it was a foreseeable consequence of a step he alone chose not to take in advance.
There is also a constitutional dimension the reasoning does not engage with. The right to choose a spouse and the right to marry a person of one's choice have been recognised as facets of the right to life and personal liberty under Article 21. If an adult accused genuinely wished to honour his promise, nothing in law prevented him from marrying against his family's wishes. That he chose not to do so is a matter of his own will, not a constraint imposed upon him by circumstance. To treat parental disapproval as a legally cognisable "unavoidable circumstance" excusing performance is to quietly import a private, non-legal veto into a determination of criminal intent and to do so without ever asking why the accused deferred to that veto rather than his own promise.
The practical effect of this reasoning is to create an almost cost-free line of defence. An accused need not prove that he took any concrete step toward marriage - approaching the woman's family, fixing a date, making any public acknowledgment of the relationship. It suffices to assert, after the fact, that a parent objected. Once that assertion is made, the burden effectively shifts. The complainant must now show that the original promise was hollow, a fact that is, by its nature, locked inside the accused's own mind at the time it was made and for which "my mother refused" becomes a strangely serviceable alibi precisely because it is nearly impossible to disprove.
This is not a hypothetical concern. Courts applying similar logic have already begun treating an accused's mere assertion of family opposition as sufficient indication of good faith, in some instances even where there was no evidence the accused made any real effort to overcome that opposition. The result is a widening gap between the text of Section 69, which is meant to punish deceitful inducement, and its practical application, which increasingly rewards accused persons for producing a familiar and unfalsifiable narrative.
It is worth noting that on the complainant's own version in Kalyani, the initial act of intimacy was not, by her own account, obtained through the promise of marriage. The promise appears to have arisen later, during the course of an already consensual relationship. If that is accurate, the case may in fact illustrate a different principle. A promise made mid-relationship, without any deceit inducing the original consent, does not by itself satisfy Section 69's requirements, since the section is concerned with promises that operate as the inducement for consent, not with promises made afterward that a relationship subsequently continues under. On this narrower reading, the result in Kalyani is more defensible than the "mother's objection" reasoning suggests and the Court could have anchored its conclusion there instead.
That the Bench chose instead to lean on the maternal objection point as an independent indicator of good faith is what makes the order concerning as precedent, quite apart from whether the ultimate outcome was correct on these particular facts.
A single order quashing an FIR does not, by itself, dismantle Section 69. But reasoning of this kind, once available in the law reports, tends to travel. Trial courts and High Courts confronted with similar fact patterns will now have a ready citation for the proposition that a promise abandoned on account of parental disapproval is, without more, a promise made in good faith. That proposition deserves to be tested far more rigorously than it was here - by asking what the accused did, if anything, to honour his promise before invoking his family as the reason he could not.
The right to raise a defence is, of course, a constitutional guarantee and no criticism of this judgment should be read as suggesting otherwise. But there is a meaningful difference between a defence that is tested against the facts and a defence that is accepted at face value because it happens to be difficult to disprove. Until courts begin distinguishing between the two, "my mother said no" risks becoming less a fact in mitigation and more a formula for acquittal.
Aditya Mishra is an advocate practicing in Delhi.