Hiding live-in relationship, child from prospective bride amounts to offence of sex by deceitful means: Kerala High Court

The Kerala High Court recently held that concealing an existing live-in relationship and a child born from that relationship before entering into a marriage with another woman prima facie attracts Section 69 of the Bharatiya Nyaya Sanhita (BNS) 2023, which criminalises sexual intercourse by deceitful means or by making false promise to marry [Udayan v XXX & ors]

Justice A Badharudeen made the observation while dismissing an appeal filed by a man against the rejection of his anticipatory bail plea in a case registered at Feroke Police Station, Kozhikode.

He was booked for offences under Sections 318(4) (cheating) and Section 69 (sexual intercourse by employing deceitful means etc) of the BNS as well as Section 3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act (SC/ST Act), 1989, following a complaint filed by a woman with whom his marriage had been fixed.

According to the complaint, the accused and the de-facto complainant belonging to a Scheduled Caste community, had decided to marry and a marriage-fixation ceremony was held for which her family spent a sum of ₹10 lakh.

The woman alleged that the accused had entered into the marriage arrangement without disclosing that he was already in a live-in relationship with another woman and that he had a three-year-old child from that relationship.

After the marriage was fixed, the de-facto complainant travelled to Wayanad at the accused's request and stayed with him in a hotel. He compelled her to have sex and she consented to the same because of their proposed marriage.

The accused argued before the Court that Section 69 would not apply to him as the provision required a person to retract from their promise to marry and in the present case he was willing to marry the de-facto complainant.

After hearing the submissions, the Court examined the scope of Section 69 BNS.

It explained that Section 69 criminalises sexual intercourse not amounting to rape in two situations.

The first is when consent for sexual intercourse is obtained through deceitful means and the second is when consent follows a promise to marry made without any intention of fulfilling it.

The Court found that the allegations against the accused fell within the first category, regardless of his contention that he was willing to marry the de-facto complainant, as he deliberately chose to conceal the information regarding his child and the live-in relationship while obtaining her consent for sexual intercourse.

"Subsequently, on the said premise of marriage, after suppressing the earlier relationship, the defacto complainant was subjected to sexual intercourse by deceitful means. Though the said overt act may not be treated as rape, the same would fall under the first situation dealt with in Section 69 of the BNS, as already pointed out," the Court added.

It noted that even the marriage was fixed on the understanding that the accused was unmarried and was not in any other relationship in the nature of marriage.

Thus, holding that the alleged offences were prima facie made out, the Court dismissed the accused's appeal and directed him to surrender before the investigating officer.

Advocates R Bindu (Sasthamangalam), G Rajagopal (Kummanam) and Ajay TS appeared for the accused.

Public Prosecutor MA Shihab represented the state.

[Read Judgment]