Suppressing Live-In, Child To Fix Marriage Is “Deceitful Means” Under BNS Section 69: Kerala HC

Ernakulam: The Kerala High Court has held that, prima facie, an accused who suppresses a live-in relationship and a child born to it while fixing a marriage, and then has sexual intercourse with the woman on the premise of that marriage, commits an offence under Section 69 of the Bharatiya Nyaya Sanhita, 2023. Since the offence also attracted the SC/ST (Prevention of Atrocities) Act, the court held that the bar on anticipatory bail under Section 18 of that Act applied.

Justice A. Badharudeen was hearing an appeal against the order dated 17.06.2026 of the Special Court, Kozhikode in B.A. No. 782/2026, which rejected the accused's anticipatory bail plea in Crime No. 138/2026 of Feroke Police Station, Kozhikode. The accused is charged under Sections 318(4), 3(5) and 69 of the BNS and Section 3(2)(va) of the SC/ST (PoA) Act. Though notice was served on the victim under Section 15A(3) of the Act, she did not appear.

According to the prosecution, a marriage fixation ceremony was scheduled between the accused, who does not belong to a Scheduled Caste or Scheduled Tribe, and the complainant, who belongs to a Scheduled Caste, for 06.07.2025. It was later noticed that the accused had decided to marry her after suppressing his live-in relationship with another woman, with whom he has a three-year-old child. The complainant's family allegedly spent Rs. 10 lakh on the ceremony, which 1,000 persons attended. The prosecution alleged that after the fixation, the accused asked her to go to Wayanad, where he compelled her to have sexual intercourse on the premise that they had already decided to marry, and she consented on that compulsion.

The accused argued that Section 318(4) BNS was not attracted since no property was delivered. He argued that Section 69 requires a promise of marriage that is later retracted, whereas he was ready to marry as proposed. He further argued that a relationship without marriage and a child, by themselves, are no reason to find the offences prima facie, so Section 18 of the SC/ST Act had no application and he was entitled to pre-arrest bail.

The Public Prosecutor relied on the complainant's statement and additional statement. He contended that suppressing a relationship in the nature of marriage and a child born to it amounts to deceitful means under Section 69, that Section 18 therefore barred anticipatory bail, and that custodial interrogation was essential.

The court noted that Section 69 deals with two situations: sexual intercourse by deceitful means, and sexual intercourse by a promise to marry made without any intention of fulfilling it, in both cases where the act does not amount to rape. It observed that the BNS offences correspond to the scheduled offences under the IPC, so Section 3(2)(va) of the SC/ST Act would also be attracted if those offences are found prima facie from the prosecution records.

On the facts, the court found that the marriage was fixed on the premise that the accused was unmarried and had no other relationship in the nature of marriage. It held that he was fully aware of his relationship and the child at the time and before the fixation, and suppressed this from the complainant and her family. Intercourse on the premise of that marriage was therefore by deceitful means. The court held that although the act may not be rape, it falls within the first situation under Section 69.

The court also noted the Investigating Officer's report that custody was necessary to record the accused's statement, seize the clothes worn at the time and conduct a potency test. It held that custodial interrogation was an absolute necessity and that anticipatory bail would impede the investigation.

Holding that the offences were made out prima facie and the Section 18 bar applied, the court dismissed the appeal and confirmed the Special Court's order. It directed the accused to surrender before the Investigating Officer forthwith, failing which the officer is at liberty to arrest him and proceed with the investigation. The Registry was directed to forward a copy of the judgment to the Special Court.

Appearances:

For the Appellant: Mr. R. Bindu, Mr. G. Rajagopal and Mr. Ajay T.S., Advocates.

For the State: Mr. M.A. Shihab, Public Prosecutor.

Case Title: Accused vs. Victim & Ors. (State of Kerala), Crl.A. No. 1231 of 2026 [2026:KER:74972]