Section 69 of the Bhartiya Nyaya Sanhita, 2023, drags legality into the wayward path of promises and their betrayal. The law formalises the judicial treatment of sexual consent said to be obtained through a false promise of marriage or by employing deceitful means. It also introduces a new legal category, “sexual intercourse not amounting to rape”, that opens fraught socio-legal questions. In this piece, I explore how Section 69 impacts live-in or cohabiting relationships of choice, where the law’s reach risks enabling the misuse of criminal provisions. The law is a legal rupture that hastens the hyper-criminalisation of love, especially relationships of choice that unsettle caste, faith, and sexuality.

Across courts, including the Supreme Court, judges have deliberated on the nature of live-in relationships. In judgments like Khushboo (2010), the Supreme Court dismissed criminal charges against an actress for endorsing premarital cohabitation. The court stated that consensual adult relationships are constitutionally protected under Article 21 and deliberated against using criminal law as an instrument of moral policing. In Badri Prasad (1978), the Court presumed a marriage from five decades of cohabitation, thus validating long-term live-in relationships. The ruling in Velusamy (2010) clarified that live-in relationships could be recognised for maintenance. These judgments show a trajectory where courts have acknowledged intimacy outside marriage and placed the rights of the partners within domesticity and under the ambit of the state. Live-in relationships mimic the notion of marital domesticity, without the legality and recognition of marriage. Thus, one might think of the act as the state’s head turning toward the not-community aspect of the non-marital. In law, judicial precedents have seen such relationships tested at the altar of courtrooms.

Now, with the implication of Section 69, a relationship is visualised as one with marriage as its natural telos. A betrayal or breakup is framed as a failed relationship, which is construed not as an outcome of the shifting nature of relationships or personal choice, but as sexual mischief “not amounting to rape.” Section 69 can thus assume that a live-in relationship failed because it was brought about by a man who manipulated but did not assault the woman. So, does that mean a scheming man misled women into a relationship, and in their virginal naivete, they faltered? But lo, in this tight-knit familial economy, the benevolent and punishing state, the parens patriae, will avenge the woman and punish the conniving man. With this law, live-in relationships can face the implications of Section 69 upon breakup or be forced to break up. When the relationship does not have clear legal recognition or the respectability of marriage, it becomes easier to turn the law on its head to criminalise love and agency.

Judicial precedents had gradually developed an approach to deal with cases involving false promises of marriage by classifying them contextually under rape law. That said, there have been critiques. Many see them as ‘fake’ rape cases, relationships went wrong, and feminist scholars have also contested this, as it only keeps marriage as the legitimate site of sexual relationships. The promise of marriage as a ground for rape itself is problematic, as it pushes as if it is more acceptable to be seen as a rape victim than to admit to consensual sex outside marriage.

Section 69 goes ahead and solidifies this rigid framework, razing any interpretive discretion to the ground by further decontextualising intimate relationships. By invoking suppression or concealment of identity, inter-caste, inter-faith and live-in relationships grow more susceptible to retroactive allegations when ending in bitterness or facing familial disapproval. In a caste patriarchal society, this statutory framework stunts the possibility of a nuanced, thought-out doctrine. Even if the promise-to-marry doctrines were to work, arguments around breach or deceit will inevitably be read through the lens of a failed live-in relationship. Scholars have argued that heavy reliance on the criminal law to address all ‘sexual wrongs’ traps the marginalised into a perpetual state of victimisation and curbs the articulation and exploration of sexual rights. The carceral energy of the state amplifies as it gives a free hand to prosecute in the name of protecting the victims and to police the choices of already marginalised communities.

The new law devours the breathing space with an overbroad legislative intent. But do we need a new law? Deterrence could be achieved through judicial deliberation without sweeping punitive measures. The ingredients of deception under Section 69 explain themselves as the suppression of identity or the promise of employment, which has a perilous history. The claim of having sex by suppressing identity could easily be brought into play in the context of live-in relationships, or love jihad. Section 69 revives a deep suspicion around non-marital intimacy, doubling down alongside state legislations like Uttarakhand’s Uniform Civil Code, all working in tandem to increase surveillance of the security state around love. The law threatens to collapse the fluidities of relationships into a disciplinary, punitive framework, shrouding them in legality and suspicion.