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Synopsis

The Kerala High Court on Monday, September 9, 2024 sought the response of the Central government regarding a public interest litigation (PIL) challenging the constitutional validity of Section 69 of the Bharatiya Nyaya Sanhita, 2023 (BNS), which criminalises sexual intercourse based on a false promise of marriage. The provision under scrutiny prescribes up to ten years of imprisonment and a fine for such acts.

The public interest litigation (PIL) filed by Advocate Vimal Vijay challenges the constitutionality of Section 69, which addresses instances where an individual engages in sexual intercourse with a woman by deceitful means or by making a false promise of marriage, asserting that it violates several fundamental rights, including the right to equality under Article 14, the right to freedom of speech and expression under Article 19(1)(a), and the right to life and personal liberty under Article 21.

The Division Bench, comprising Justice A Muhamed Mustaque and Justice S Manu, has directed the Central government to file its response to the constitutional challenges raised by the petitioner.

The Section reads as follows:

Section 69: Sexual intercourse by employing deceitful means, etc: Whoever by deceitful means or by making promise to marry a woman without any intention of fulfilling the same, and 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.

Explanation – “deceitful means” shall include the false promise of employment or promotion, inducement or marrying after suppressing identity.

According to the petitioner, the provision’s classification of men as the only perpetrators of deceit in sexual relationships is inherently discriminatory and violates the principle of reasonable classification under Article 14. Furthermore, the petitioner argues that the provision cannot be justified as a special protective measure for women under Article 15(3) because it neither uplifts nor empowers women but instead reinforces misogynistic stereotypes.

The plea also draws parallels between Section 69 and the now-struck-down Section 497 of the Indian Penal Code, which criminalised adultery based on similar patriarchal presumptions. In addition, the PIL raises concerns about the exclusion of live-in relationships and LGBTQIA+ individuals from the protection of the law, stating that the provision fails to account for diverse relationship dynamics and sexual orientations.

Another argument put forth by the petitioner is that Section 69 criminalises consensual sexual relations outside of marriage, thus infringing on individuals’ right to privacy and sexual autonomy as protected under Articles 19(1)(a) and 21. The PIL emphasises that the relationship between individuals is complex and cannot be reduced to legislative prescriptions that penalise consensual acts that do not result in marriage.

The petitioner further criticises the vagueness of the provision, particularly its reference to “identity suppression,” which is not clearly defined. According to the petition, the ambiguity surrounding what constitutes "identity" could lead to arbitrary and broad interpretations, potentially criminalising acts based on factors such as marital status, caste, religion, or profession.

The court will further examine the matter after receiving the government's submissions.

 

Cause Title: Vimal Vijay v Union of India and Another [WP(C) No: 31598/ 2024]