The Kerala High Court has sought the response of the Central government on a public interest litigation (PIL) challenging the constitutional validity of Section 69 of the Bharatiya Nyaya Sanhita, 2023 (BNS), which criminalizes sexual intercourse on the false promise of marriage.

The case, titled Vimal Vijay v Union of India & Anr, was heard by a Division Bench comprising Justice A Muhamed Mustaque and Justice S Manu.

Also Read: Section 69 of Bharatiya Nyaya Sanhita, 2023 (BNS)

Section 69: Overview

Under Section 69 of BNS, engaging in sexual intercourse with a woman through deceitful means or by falsely assuring marriage carries a potential penalty of up to 10 years imprisonment, along with a fine.

Grounds for Challenge

The petition filed by Kerala-based lawyer Vimal Vijay argues that Section 69 is unconstitutional, violating several fundamental rights enshrined in the Indian Constitution. These include:

• Article 14 (Right to Equality)
• Article 15(1) (Prohibition of discrimination based on sex)
• Article 19(1)(a) (Freedom of expression)
• Article 21 (Right to life and personal liberty)

The PIL asserts that the provision is framed from a patriarchal viewpoint, implying that only men can make promises of marriage, which paints women as passive victims without autonomy in decision-making regarding relationships and marriage.

The petitioner contends that such a provision reinforces misogynistic stereotypes, diminishing the dignity of women and violating their fundamental rights.

Violation of LGBTQIA+ Rights

The petition further highlights that Section 69 does not account for the rights of LGBTQIA+ individuals or those in live-in relationships.

Despite the Supreme Court’s ruling in Navtej Singh Johar v Union of India (2018), which decriminalized consensual sexual relationships among LGBTQIA+ individuals, the BNS does not provide equivalent protection for this community, exposing them to potential harm.

Citing Past Judgments

The petitioner referenced the Supreme Court’s decision in Joseph Shine v Union of India (2019), which struck down Section 497 of the Indian Penal Code, decriminalising adultery on the grounds of its patriarchal basis.

Similarly, Section 69 of BNS, according to the petitioner, fails to align with this progressive stance, perpetuating gender-based biases.

Constitutional Violations

The PIL emphasizes that Section 69 criminalizes consensual sexual relations, a fundamental aspect of an individual’s right to privacy, dignity, and freedom of expression, as protected by Articles 19(1)(a) and 21.

By imposing restrictions on sexual relationships under false promises of marriage, the provision undermines an individual’s right to a meaningful life and autonomy.

Bench and Parties Involved

The Kerala High Court Bench hearing the case comprises Justice A Muhamed Mustaque and Justice S Manu.

The petitioner, Vimal Vijay, is represented by advocates Sruthy N Bhat, Vipin Narayan, and Nanditha S. Notices have been issued to the Central government to respond to the claims raised in the petition.