By: Belinda Augustine*

In Mahesh V.M. v. State of Kerala, the Kerala High Court granted bail to a man accused of sexually assaulting a woman on a false promise to marry (“FPM”) under Sections 64(2)(m) and 69 of the Bharatiya Nyaya Sanhita, 2023 (“BNS”). The Court’s order rests upon a single, slender thread of reasoning: that such an allegation is conceptually impossible, as the complainant was already married. A “subsisting marriage”, the Court tells us, by its very existence, “negates” the possibility of any promise to marry, insisting that since the complainant was already married, there could be no conceivable circumstance where the promise to marry could stand.

This move is not unfamiliar. In another recent judgment, a Division Bench of the Supreme Court consisting of Justices M.M. Sundresh and N. Kotiswar Singh, employed precisely the same logic. According to this line of thought, married women simply fall outside the legal imagination of the FPM offence: since a promise to marry a person who is already bound by another marriage is invalid, any sexual relation premised upon it cannot vitiate consent. The reasoning runs even further – what is left is not consent under deception, but an “offence” on the woman’s own part, for breaching matrimonial bonds.

What emerges is a judicial trope: married women, as a class, are excluded from the doctrinal category of “false promise to marry.” Their consent cannot, as a matter of law, be vitiated by such misrepresentation. That such reasoning should pass judicial muster even today, marks another episode in India’s chronicle of judicial abnegation at the altar of patriarchy. But this exclusion-bordering on the absurd, requires unpacking.

Consent And Its Erasure

The Indian Supreme Court, in Kaini Rajan, explained consent as voluntary participation, exercised after an act of thorough deliberation, as the conscious choice between resistance and assent. Section 90 of the Indian Penal Code (“IPC”), now carried into Section 28 of the BNS has historically conditioned the validity of consent on freedom from coercion, fear, or misconception of fact. In principle, then, consent is individual, deliberative, and subjective.

Yet, in cases like Mahesh V.M., the courts deny deliberation altogether. They assume that a married woman, by reason of her legal status, can never deliberate on a promise of marriage because the promise is “invalid” ab initio. A technical defect in the promise is allowed to overwrite the woman’s personal autonomy. The inevitable result is a legal fiction where married women are treated as if they lack the same unassailable right as others to determine how, and on what basis, they may choose to engage in sexual intimacy. Even in cases where the woman had divorced her husband on a FPM, or the man had gone to elaborate lengths to promise marriage, the court refused to extend its protective scope to married women.

This, of course, ignores reality. The court fails to contemplate separation, divorce or remarriage of the married woman. In some cases, women remain in marriages but seek connections outside of them — often in situations marked by precarity, coercion, abuse or even otherwise. Courts, however, write these realities out of the law, replacing them with a singular vision of marriage as an all-consuming container of consent. What remains is a caricature: the “fallen” married woman, unworthy of being deceived because she should never have dared to trust in the first place.

The judicial logic is not new. In the infamous Jayanti Rani Panda case, the Court declared that a “full-grown girl” who consented to intercourse on a promise of marriage and continued so “until she became pregnant” was guilty of “promiscuity,” not the victim of deception. That framing still persists. The deception intrinsic to a false promise is glossed over; so too are the very real psychological and emotional harms produced by breached trust. Courts also do not see beyond the physicality of sexual relations, into the intimacy and emotional significance they carry.

The court’s understanding of consent in this context, is not just flawed but deeply complicit in the longstanding project to collapse legal subjectivity into moral archetypes. The exclusion of married women from the scope of FPM is but another example of the state of exception married women are put in- where the violence against married women is legitimised and normalised by showing inapplicability of law in protecting married women (The Marital Rape Exception is another well-known example).

The sleight of hand here lies in the Court’s constricted view of both consent and sexual autonomy. First, it reduces consent to a narrow, contractual register, where a promise is either “valid” or “invalid”, and sexual agency derives entirely from that legal validity. But surely consent is made meaningful not in the abstract purity of private law, but within lived situations of power, vulnerability, and choice. To hold otherwise is to deny women full agency over their own sexual selves, and to collapse dignity into legality.

Second, the erasure is not accidental, but systemic. By ruling that married women cannot, by definition, be “promised marriage” and deceived into sexual relations, the Courts effectively write them out of the protective scope of the law. This is not the neutral application of statutory text, but the active construction of an exclusion – an exclusion that mirrors, almost too neatly, the patriarchal suspicion that hovers over women’s testimony, particularly when it troubles the sanctity of marriage.

Reading S.28 Clearly

In S.74 of England’s Sexual Offences Act, a person is said to have consented “if he agrees by choice, and has the freedom and capacity to make that choice”. The understanding of consent is located in the complainant’s understanding of what they are consenting to, rather than questions located in contractual validity. This test is a “free exercise of choice test” that focuses rather, on what materially shaped the complainant’s decision to “consent”. The pivot is not whether the underlying promise is enforceable in law, but whether the deception distorted the complainant’s freedom and capacity to choose.

Similarly, S.28 of the BNS also posts a factual inquiry. The phrase “the consent was given in consequence of such fear or misconception” shows that the inquiry is to be made with respect to the complainant’s subjective belief that a man will marry her. The current judicial understanding confuses the concept of whether the promise itself is valid and the subjective state of the woman’s mind. A promise may well be legally defective and yet, perfectly capable of inducing a factual misconception. The principle of sexual self-determination applies flatly to both married and unmarried persons. A woman may believe, as a matter of fact, that a man will marry her, even if the law may not accommodate it. The statutory text also squarely accommodates these cases, and the judicial gloss refuses to see them.

In cases where the courts have held that a promise of marriage to married women is inherently impossible by law and therefore cannot generate a misconception sufficient to vitiate consent, an ‘ought to have known’ standard operates, which converts the married woman’s civil status into an evidentiary presumption against her agency. That because she is married, she is deemed incapable of believing that a man could marry her, and therefore incapable of being deceived. The fact of marriage does not render the promise impossible, per se. The pathway that this merely makes its fulfilment more complex is not explored. Fulfilment may be contingent on divorce or dissolution of the prior marriage.

Imagining Alternatives

It is at this juncture that law and society dance their most cynical tango. In the Indian context, FPM goes to the very root of consent as premarital sex is considered reprehensible in our society. Sex only becomes permissible on the promise of marriage- the reality is such that this is a consideration that colours the minds of the consenting women. Scholar Flavia Agnes emphasises that  FPM prosecutions are overwhelmingly brought by women from socially disadvantaged communities, whose articulations of boundaries are restricted due to cultural and social norms. The realities of class and caste also make this an intersectional issue, making it more likely that vulnerable groups are exploited.

In contexts where premarital sex is deeply stigmatised, a promise of marriage often provides the only socially legitimate cover for sexual intimacy. Feminists have pointed out that while the FPM category is itself fraught with the burden of patriarchal assumptions, its usage mirrors the harsh realities of caste, class, and gendered stigma in India. For vulnerable women, promises of marriage are not abstract; they are tools of legitimisation, means of negotiating impossible social structures.

When courts exclude married women from this framework, they mark them into a state of exception where their consent is not legally intelligible. It is the law itself which creates a hierarchy of victims and violence against married women is normalised, showing the inapplicability of the law in protecting married women.

This binary logic also breeds incoherence in the criminal law continuum. Judicial reasoning in FPM cases frequently hinges on irrelevant sociocultural stereotypes. In Uday v. State of Karnataka, for example, the Supreme Court suggested that promises of inter-caste marriage could never constitute deception because inter-caste unions were implausible to begin with. Judges have cited the “duration” of a relationship to conclude that consent must have been “free” – as though prolongation equals voluntariness. Such casual insertions of morality masquerading as legal principle render the law unpredictable, erratic, and divorced from the lived experiences of women.

In a recent case involving false promise to marry, the Allahabad High Court, reasoned that the sole fact of the impossibility of fulfilling the promise will not negate the allegation. The court’s point of inquiry was not from the legal validity or invalidity of the promise, but from the subjective knowledge and intent of the promiser.

The court’s hesitance to criminalisation is understandable. However, married women must not go without remedy due to the all-or-nothing approach in FPM cases. Rather than shoehorning FPM prosecutions into the rape framework, a more nuanced criminal and civil continuum should be developed. Misrepresentation as to marriage may not always rise to the level of rape, but it remains a serious violation of sexual autonomy and dignity. This compels us to think of an alternative framework to rape and instead as a “rape-adjacent offence,” as some scholars describe. A principle of fair labelling where offences are described in terms that accurately match the underlying wrong – would situate such cases in their proper locus: deceptive exploitation, rather than “rape” narrowly conceived.

Scholar Mini Saxena emphasises that a majority of the women preferred civil remedies such as compensation. Civil remedies may also provide recognition without the blunt force of criminal stigmatisation, better aligning law with harm. In Deelip Singh, the court had granted a sum of 50000 as compensation to the complainant using its powers under Article 142, recognising the “trail of misery, ignominy and trauma” that the accused left behind. Such civil remedies provide for better prioritisation for the subjective experiences of women and frankly, prove more useful.

Conclusion

Ultimately, the greatest tragedy of these judgments is the refusal to acknowledge the subjective experiences of women, especially married women who find themselves deceived into relationships under coerced or fraudulent pretences. Instead of asking whether deception vitiated consent, courts retreat into categories of honour, chastity, and technical impossibility. The result is a formalism that functions as a social judgment: women who fall outside the bounds of judicial morality are treated as agents of their own misfortune.

When the law insists that a married woman cannot, as a matter of legal imagination, be deceived into an intimate relationship on a false promise of marriage, it is not merely foreclosing an interpretive category. It is reinforcing an older, more violent fiction: that women’s sexuality belongs to institutions of marriage, family, and community, rather than to themselves. And in this reinforcement, decades of feminist struggles to prise open the conceptual shackles binding sex to marriage are undone, folded back into the black-letter law of consent.

*Belinda Augustine is a law undergraduate at the National Academy of Legal Studies and Research, Hyderabad. The author may be contacted via mail at belinda05.augustine@nalsar.ac.in.