PIL before Kerala High Court assails Section 69 BNS criminalising sex on false promise of marriage

The Kerala High Court on Monday sought the response of the Central government to a plea challenging the constitutional validity of Section 69 of the Bharathiya Nyaya Sanhita, 2023 (BNS) which criminalises sex on false promise of marriage [Vimal Vijay v Union of India & anr]..Under Section 69, an individual who engages in sexual intercourse with a woman through deceitful means or by providing false assurances of marriage will face a potential punishment of up to ten years of imprisonment, in addition to being liable for a fine..The petition, field as a public interest litigation (PIL), has challenged the provision on the grounds of being violative of Articles 14, 15(1), 19(1)(a), and 21of the Constitution of India.A Division Bench of Justice A Muhamed Mustaque and Justice S Manu on Monday issued notice to the Central government and sought its response..The petition, filed by Vimal Vijay, a lawyer practicing in Kerala, has challenged the provision on the ground that it was framed from a patriarchal view point, reflecting a regressive understanding of gender roles, treating women as passive victims incapable of making independent decisions regarding marriage or relationships."Section 69 BNS disseminates that a man alone is capable of making a promise of marriage is archaic. It is proliferating the idea that women are inherently irresolute, forceless, hapless and hence incapable of making sound decisions of marriage. It would portray that the women have no agency in her life with regard to such decisions and it would showcase the misogynistic and patriarchal mindset of the legislature," the plea said. This bias, according to the petitioner, violates Article 14 by unfairly classifying individuals based solely on sex, which fails the standard of reasonable classification. As per the petition, Section 69 cannot be justified as protective discrimination under Article 15(3) (State to make special provisions for women and children), as it neither uplifts nor empowers women but instead derogates them, diminishing their dignity and societal status.According to the petitioner, the provision is also contrary to the landmark judgment in Joseph Shine v Union of India (2019) 3 SCC 39, where the Supreme Court struck down Section 497 of the Indian Penal Code (which criminalized adultery) for its patriarchal presuppositions..The PIL also raised concerns about Section 69’s failure to address the rights of individuals in live-in relationships and the LGBTQIA+ community. According to the petitioner, even though rights of the LGBTQIA+ community were constitutionally recognised in the case of Navtej Singh Johar v Union of India (2018) 10 SCC 1, there is no corresponding provision in the BNS akin to Section 377 of the Indian Penal Code (IPC) that addressed sexual offences committed deceitfully against LGBTQ individuals.The absence of such protection exposes LGBTQIA+ individuals to harm, violating their right to equality and protection from discrimination, as guaranteed under Article 14, it was contended.Furthermore, the petitioner claimed that Section 69 criminalizes a fundamental human emotion—namely, the right to engage in consensual sexual relations, which is protected under under Article 19(1)(a) (freedom of expression) and Article 21 (protection of life and personal liberty) of the Constitution, as it forms part of an individual’s right privacy and meaningful life..On these grounds, the petitioner urged the Court to strike down Section 69 of BNS for being vague, ambiguous and discriminatory..The petitioner was represented by advocates Sruthy N Bhat, Vipin Narayan and Nanditha S.