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Rape Law in Transition, Part 4: The False Promise of Marriage

28 September 2026 · 18 min read

This is Part 4 of nine of Rape Law in Transition, a study of section 376 of the Indian Penal Code, sections 63, 64 and 69 of the Bharatiya Nyaya Sanhita, and the trial of sexual offences from complaint to appeal. One part is published each day from 27 September to 5 October 2026.

V. The False Promise of Marriage: Section 376 with Section 90 IPC, and Section 69 BNS

Under the Penal Code, a promise of marriage turned intercourse into rape only on two conditions: the promise was false when it was made, and it was the reason the woman agreed. The Nyaya Sanhita has moved that conduct into section 69, a separate and lighter offence. The Supreme Court has held that the same test of intention at the outset governs it.

The Penal Code route

The modern law begins with Uday v. State of Karnataka.1 The prosecutrix was a grown woman who had consented to intercourse because she loved the accused and he had promised to marry her. She also knew that the difference in their castes made the marriage unlikely. The Court held that she had not acted under a misconception of fact, and that her consent was her own. It made three points. A failure to keep a promise at some uncertain future date does not, without more, show that consent was given under a misconception at the outset. Section 90 is engaged only where the accused never intended to marry from the very beginning. And the burden of proving the absence of consent rests on the prosecution. The Court added that the tests it described were only guides: each case would turn on its own evidence.

Deelip Singh v. State of Bihar refined the position a year later.2 A promise to marry, “without anything more”, does not give rise to a misconception of fact. But a representation deliberately made to obtain the woman’s assent, by a man who has no intention of marrying her, does vitiate her consent. On the facts the Court found a breach of promise rather than a false promise, and it set aside the conviction. It nonetheless directed the accused to pay fifty thousand rupees in compensation under Article 142. That order is an early instance of the Court separating criminal liability from the wrong the woman had undoubtedly suffered.

Deepak Gulati v. State of Haryana gave the distinction its settled form.3 There is, the Court said, a difference between the mere breach of a promise and the failure to fulfil a false promise, just as there is a clear distinction between rape and consensual sex. The court must ask whether the accused actually wished to marry the woman, or whether he had mala fide motives and made the promise only to satisfy his lust. Section 90 requires him to know that the consent rests on a misconception. And there must be adequate evidence that, at the initial stage, he had no intention whatsoever of keeping his word.

Pramod Suryabhan Pawar v. State of Maharashtra reduced this to a two-part test, which the Court has applied ever since.4 First, the promise must have been false: given in bad faith, and with no intention of being kept when it was made. Second, the false promise must have had a direct nexus to the woman’s decision to engage in the sexual act. On the facts, the relationship had lasted some six years and continued after the obstacle to marriage arose. No bad faith at the outset was alleged, and the FIR was quashed.

The prosecution’s principal authority is Anurag Soni v. State of Chhattisgarh.5 There the prosecution proved that the accused had never intended to marry the prosecutrix. The Court held that consent obtained on such an assurance is consent given under a misconception of fact within section 90, so that the act is rape. The conviction was upheld, though the sentence was reduced to seven years.

The research for this essay found no Supreme Court decision between 2024 and 2026 that upholds a false-promise conviction for rape on its merits. Mukesh Kumar Yadav v. State (Andaman and Nicobar) is sometimes cited as such a case, but the Court there corrected only an error of sentencing procedure. It remitted the matter to the High Court and left the conviction open to challenge afresh.6

The quashing line

Since 2018 the Supreme Court has repeatedly quashed prosecutions that arose from relationships ending without marriage. The decisions are fact-specific, but their reasoning runs in a single current. The cases fall broadly into four groups.

Mature complainants and long cohabitation

In Dhruvaram Murlidhar Sonar the complainant was a widow and a nurse who had lived with the accused. The Court held that intercourse under a promise is not rape unless the promise was made with the sole intention of seducing her.7

In Naim Ahamed the complainant was a married woman with three children. She continued to live with the accused after learning that he was married, and bore his child. The Court held that she was mature enough to understand what she was agreeing to, and acquitted him. It nonetheless let stand an order that he pay her five lakh rupees.8

Defects in the complaint itself

In Sonu @ Subhash Kumar, an appeal from Uttar Pradesh, the Court quashed a charge-sheet because the FIR itself did not allege that the promise was false when made.9

Consensual relationships that ended

The largest group concerns relationships that were consensual while they lasted and ended without marriage. In Shiv Pratap Singh Rana a two-year relationship was held to be consensual, and the trial was quashed.10 In Prashant the Court said that “a mere breakup” between consenting adults cannot set the criminal law in motion, and that the High Court should have used its inherent power to prevent an abuse of process.11

Mahesh Damu Khare contains the fullest statement of the doctrine.12 The relationship there began in 2008, and the FIR came in 2017. A complaint made promptly, the Court observed, would point towards a false promise; one made after years of continued relations makes that inference difficult to draw. Even if the first promise had been false, years of continuing the relationship weakened any direct link between the promise and the intercourse. The complainant was a mature woman with grown daughters, and the real trigger for her complaint was that the accused’s financial support had stopped. To attach criminality to a long relationship at so late a stage, the Court warned, is dangerous.

Rajnish Singh @ Soni, an appeal from the Allahabad High Court, carried the reasoning further. The complainant was a lecturer, and the relationship had lasted sixteen years. No reasonable person, the Court said, would accept that she had consented for sixteen years only because of a promise of marriage; the case was a love affair gone sour, and its prosecution an abuse of process.13 In Jaspal Singh Kaural the Court added that it would be folly to treat every breach of a promise to marry as a false promise,14 and in Samadhan it required that the physical relationship be traceable directly to a promise that was false from the start.15

Promises the law could not enforce or that were made in good faith

In Pramod Kumar Navratna the complainant was herself married. A promise to marry her was legally incapable of performance, and the Court described the case as a consensual relationship turning acrimonious.16

In Kunal Rameshbhai Kalyani the parties had met on a digital platform. The Court held that merely communicating a wish to marry is not a deceitful means. The accused’s later refusal, because his mother would not permit the marriage, showed that any promise had been made in good faith.17

The Allahabad High Court

The Allahabad High Court has applied the same reasoning. In Alok Ranjan it quashed proceedings under section 528. The FIR there had followed the accused’s own petition for restitution of conjugal rights, and the Court found it had been lodged to take revenge for a failed relationship.18 In Saurabh Pal Singh it discharged an accused after a relationship of more than ten years, entangled with money. The prosecutrix’s own statement under section 164 disclosed no promise that was false at the outset.19

The common thread

What unites these decisions is not sympathy for the accused but a view about evidence. Intention at the outset is a state of mind at a fixed moment, and it must be inferred from facts. The longer a relationship continues, the harder it becomes to say that the woman’s agreement on each occasion was procured by a promise made at the start. The same is true where she knew of the obstacle to marriage. It is equally true where the complaint follows a trigger that has nothing to do with the promise: his marriage to another woman, a quarrel over money, or litigation he has begun.

Section 69 of the Nyaya Sanhita

Section 69 reads, in its operative part:

Whoever, by deceitful means or by making promise to marry to a woman without any intention of fulfilling the same, 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.

The Explanation provides that “deceitful means” includes inducement for, or a false promise of, employment or promotion, and marrying by suppressing identity. The promise to marry therefore appears in the body of the section, not in the Explanation.

The offence therefore has three elements: sexual intercourse with a woman; obtained either by deceitful means or by a promise to marry made with no intention of fulfilling it; and falling short of rape. The punishment extends to ten years, and there is no minimum.

The Supreme Court’s first reading

In Kunal Rameshbhai Kalyani the Supreme Court read the section for the first

time.20 It began from the Penal Code. There a false promise had been

prosecuted under section 375 read with section 90, and consent was vitiated

only if the promise was made with no intention of keeping it. The Court

then observed that the Nyaya Sanhita, by enacting section 69, had created

a separate offence. It had carved fraudulent and deceitful conduct out of

the grave offence of rape, and given that conduct its own punishment. The

words “without any intention of fulfilling the same”, the Court held, import the

same rigour. The promise must have been made with the intention of never

keeping it.

The Allahabad High Court

The Allahabad High Court has described section 69 as a new offence, distinct from section 375, which draws on the principles of section 90. In Vipin Kumar it held that a man who is already married, and who promises marriage to another woman, deceives her from the outset, leaving to the trial the question whether she knew of his marriage.21 In Shivam Upadhyay the accused had made his marriage conditional on his sisters being married first; the Lucknow Bench treated this as showing that he never meant to marry, and refused anticipatory bail.22 In Udayveer Singh, by contrast, a four-year consensual relationship was held to be neither a misconception under section 28 nor deceit under section 69, and anticipatory bail was granted.23 And in Sayyed Sameer the Lucknow Bench observed, in a bail appeal whose observations do not bind the trial, that the issue before it was one of deceit and breach of promise under section 69 rather than of force under section 64.24

The Karnataka High Court, by contrast, has treated both section 69 and the aggravated form of section 64 as prima facie attracted on the same facts, and declined to quash.25

Why the choice of section matters

The choice between the two sections has consequences well beyond the sentence, and Appendix B sets them out. Only section 64 attracts the presumption of absence of consent, the two-month limits for investigation and trial, mandatory trial in camera, and the enhanced punishment for repeat offenders. Both sections require the complaint to be recorded by a woman officer and the victim’s statement to be recorded by a magistrate; both protect her identity and exclude evidence of her character; and both call for trial, as far as practicable, by a woman judge. Neither bars anticipatory bail, a bar the statute reserves for the rape of girls under sixteen and the gang rape of minors.

Questions the courts have not yet settled

The first open question is whether a bare false promise made after 1 July 2024 must now be charged under section 69 rather than section 64, and no binding decision answers it. The reasoning in Kunal is that Parliament “carved out” deceitful conduct from rape. It is submitted that this strongly supports the view that a false promise unaccompanied by force, fear or incapacity now belongs under section 69, leaving section 64 for those cases. The Karnataka High Court has treated both as attracted, and the Lucknow Bench, in a bail order, has leaned towards section 69. Where the prosecution alleges nothing but a false promise, the defence should seek alteration of the charge under section 239 of the Nagarik Suraksha Sanhita.

The second concerns conduct before 1 July 2024. For such conduct section 69 cannot be applied, and the charge remains section 376 read with section 90. A defence argument on sentence remains, though it should be stated with its weaknesses. In T. Barai v. Henry Ah Hoe the Supreme Court made two holdings. Article 20(1) is not attracted where a later law reduces the punishment for an offence. And the rule of beneficial construction requires even an ex post facto law of that kind to be applied to soften the rigour of the earlier law.26 Parliament now treats the false promise as a lesser offence without a minimum sentence, and the accused may ask for the benefit of that legislative judgment. There are three answers: T. Barai concerned the same offence, re-graded by an amending Act, whereas the Penal Code has been repealed and a different offence created; section 358 of the Nyaya Sanhita expressly saves penalties incurred under the Code; and the Allahabad High Court has held that section 69 is not retrospective.

It is submitted that the argument is legitimate but uphill, and no decision accepting it was found.

The third concerns cases in which either party is married. A promise to marry a woman who is already married is legally unenforceable, and it points towards a consensual relationship rather than deceit (Pramod Kumar Navratna). A married man who conceals his marriage and promises marriage deceives from the beginning (Vipin Kumar). Where he actually goes through a form of marriage while suppressing his identity, the Explanation to section 69 applies in terms.

The facts that decide these cases

Whichever section is invoked, false-promise cases are won and lost on a small number of facts: when the promise was first made, measured against the first act of intercourse; whether the woman knew of an obstacle to the marriage, whether caste, religion, an existing marriage or family opposition; how long the relationship lasted, and whether intercourse continued after the obstacle came to light; her age, education and independence; what triggered the complaint; and whether her first information or her statement before the magistrate alleges, even once, that the promise was false when made.

The prosecution’s best evidence of a false intention is concrete: an engagement to another woman already arranged, a false name, a concealed marriage, a condition that shows the marriage was never meant to happen, or a pattern of similar conduct with other women. The defence’s best evidence is the relationship itself, traced over time in the woman’s own words and messages.

Appendix B. Consequences of charging under section 64 or section 69 BNS

For conduct on or after 1 July 2024, the choice between section 64 and section 69 of the Nyaya Sanhita carries the following procedural and evidentiary consequences.

ConsequenceSection 64 (rape)Section 69 (deceit)
PunishmentNot less than 10 yearsUp to 10 years; no minimum
Presumption of absence of consent (s. 120 BSA)Only where s. 64(2) is chargedNot available
Investigation within two months (s. 193(2) BNSS)YesNo
Trial within two months of charge-sheet (s. 346 BNSS)YesNo
Mandatory trial in camera (s. 366(2) BNSS)YesNot listed
Trial by a woman judge as far as practicable (s. 21 BNSS)YesYes
Information and statement recorded by a woman officer (ss. 173, 180 BNSS)YesYes
Victim’s statement before a magistrate (s. 183(6)(a) BNSS)YesYes
Protection of identity (s. 72 BNS)YesYes
Evidence of character excluded (ss. 48, 149 BSA)YesYes
Anticipatory bail barred (s. 482(4) BNSS)Only for ss. 65 and 70(2)No
Repeat-offender enhancement (s. 71 BNS)YesNo

The series

Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.

Footnotes

  1. Uday v. State of Karnataka, (2003) 4 SCC 46 (N. Santosh Hegde and B.P. Singh JJ; no paragraph numbers on Indian Kanoon). ↩

  2. Deelip Singh @ Dilip Kumar v. State of Bihar, (2005) 1 SCC 88 (no paragraph numbers on Indian Kanoon). ↩

  3. Deepak Gulati v. State of Haryana, (2013) 7 SCC 675 (Dr B.S. Chauhan and Dipak Misra JJ), paras 18, 20 and 21. ↩

  4. Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608, paras 16 and 18–20. ↩

  5. Anurag Soni v. State of Chhattisgarh, (2019) 13 SCC 1 (L. Nageswara Rao and M.R. Shah JJ), paras 12, 14 and 16. ↩

  6. Mukesh Kumar Yadav v. State (Andaman and Nicobar), 2026 INSC 559, decided on 26 May 2026 (K.V. Viswanathan and Vijay Bishnoi JJ), paras 19–22. ↩

  7. Dhruvaram Murlidhar Sonar v. State of Maharashtra, AIR 2019 SC 327, decided on 22 November 2018 (A.K. Sikri and S. Abdul Nazeer JJ), paras 20, 21 and 23. ↩

  8. Naim Ahamed v. State (NCT of Delhi), Criminal Appeal No. 257 of 2023, decided on 30 January 2023 (Ajay Rastogi and Bela M. Trivedi JJ), paras 20 and 21. ↩

  9. Sonu @ Subhash Kumar v. State of U.P., AIR 2021 SC 1405, decided on 1 March 2021 (Dr D.Y. Chandrachud and M.R. Shah JJ), paras 9, 11 and 12. ↩

  10. Shiv Pratap Singh Rana v. State of Madhya Pradesh, 2024 INSC 481, decided on 8 July 2024 (Abhay S. Oka and Ujjal Bhuyan JJ), paras 19, 25 and 27. ↩

  11. Prashant v. State (NCT of Delhi), 2024 INSC 879, decided on 20 November 2024 (B.V. Nagarathna and N. Kotiswar Singh JJ), paras 18, 19 and 21. ↩

  12. Mahesh Damu Khare v. State of Maharashtra, 2024 INSC 897, decided on 26 November 2024 (B.V. Nagarathna and N. Kotiswar Singh JJ), paras 22–31 and 37. ↩

  13. Rajnish Singh @ Soni v. State of U.P., 2025 INSC 308, decided on 3 March 2025 (Vikram Nath and Sandeep Mehta JJ), paras 21, 22, 25, 29 and 37–39. ↩

  14. Jaspal Singh Kaural v. State (NCT of Delhi), 2025 INSC 457, decided on 7 April 2025 (B.V. Nagarathna and S.C. Sharma JJ), paras 13–15. ↩

  15. Samadhan v. State of Maharashtra, 2025 INSC 1351, decided on 24 November 2025 (B.V. Nagarathna and R. Mahadevan JJ), paras 27, 28 and 38. ↩

  16. Pramod Kumar Navratna v. State of Chhattisgarh, 2026 INSC 124, decided on 5 February 2026 (B.V. Nagarathna and Ujjal Bhuyan JJ), paras 17, 19, 20 and 28. ↩

  17. Kunal Rameshbhai Kalyani v. State of Gujarat, 2026 INSC 987, paras 5–7. ↩

  18. Alok Ranjan v. State of U.P., 2026:AHC:158011, decided on 30 July 2026 (Vivek Kumar Singh J), paras 53–56. ↩

  19. Saurabh Pal Singh v. State of U.P., Criminal Appeal Nos. 769 of 2025 and 2424 of 2026, decided on 6 July 2026 (Santosh Rai J), paras 22 and 29–32. ↩

  20. Kunal Rameshbhai Kalyani v. State of Gujarat, 2026 INSC 987, para 4. ↩

  21. Vipin Kumar v. State of U.P., Application u/s 528 BNSS No. 45399 of 2025, decided on 23 February 2026 (Avnish Saxena J), paras 15–17 and 19. ↩

  22. Shivam Upadhyay v. State of U.P., 2026:AHC-LKO:23816, decided on 6 April 2026 (Manish Kumar J), paras 7, 9 and 10. ↩

  23. Udayveer Singh v. State of U.P., 2025:AHC:12805, decided on 24 January 2025 (Vivek Varma J), para 5. ↩

  24. Sayyed Sameer v. State of U.P., 2025:AHC-LKO:64645, decided on 16 October 2025 (Pramod Kumar Srivastava J). ↩

  25. Hanmantappa v. State of Karnataka, 2026:KHC-D:14301, decided on 31 August 2026 (Anant Ramanath Hegde J), paras 14–16. Persuasive only. ↩

  26. T. Barai v. Henry Ah Hoe, (1983) 1 SCC 177, decided on 7 December 1982 (no paragraph numbers on Indian Kanoon). ↩

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