Deconstructing Consent and Culpability: A Critical Evaluation of Section 69 under the Bharatiya Nyaya Sanhita, 2023

Abstract

Section 69 of the Bharatiya Nyaya Sanhita, 2023 creates a separate offence for sexual intercourse obtained through deceitful means or a promise to marry made without an intention to fulfil it, where the conduct does not amount to rape. This article evaluates whether the provision supplies a coherent and constitutionally defensible response to deception-based sexual exploitation. It uses doctrinal legal research, examining the statutory text, legislative materials, pre-BNS Supreme Court jurisprudence, and reported Supreme Court and High Court decisions through 31 July 2026. The analysis finds that Section 69 appropriately distinguishes calculated deception from rape, but its language leaves unresolved questions concerning causation, proof of initial intent, the scope of 'deceitful means', electronic evidence, and the relationship between criminal liability and failed consensual relationships. Its gender-specific formulation also excludes male, transgender, and non-binary victims and may conflict with constitutional commitments to equality, privacy, dignity, and decisional autonomy. Recent decisions show courts importing the established distinction between a false promise from inception and a later breach of a genuine promise. The article recommends gender-neutral drafting, a clear reliance requirement, objective indicators of initial fraudulent intent, privacy-sensitive digital-evidence procedures, and structured safeguards against arbitrary arrest.