“Though the said overt act may not be treated as rape, the same would fall under the first situation dealt with in Section 69 of the BNS,” the Kerala High Court said, holding that concealing a live-in relationship and a child before an engagement prima facie amounts to deceitful means, and refusing anticipatory bail.
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Kochi: The Kerala High Court has dismissed an appeal by a man accused of having sexual intercourse with a woman from a Scheduled Caste community after their marriage was fixed, while concealing that he had a live-in partner and a three-year-old child, holding that the offences under Section 69 of the Bharatiya Nyaya Sanhita (BNS) and the SC/ST (Prevention of Atrocities) Act are prima facie made out and that the bar on anticipatory bail under Section 18 of the SC/ST Act applies [Udayan v. XXX & Ors.].
Justice A. Badharudeen, who heard the criminal appeal against the Special Court’s order, directed the accused to surrender before the investigating officer forthwith. The allegations are yet to be tested at trial, and the accused is presumed innocent.
Section 69 covers two situations
The Court read Section 69 of the BNS as dealing with two distinct situations. The first is sexual intercourse obtained “by deceitful means”, not amounting to rape; the second is sexual intercourse on a promise to marry made without any intention of keeping it. The Explanation to the provision says deceitful means include “marrying by suppressing identity”.
Applying this to the case diary, the Court found that the marriage was fixed on the footing that the accused was unmarried and had no relationship in the nature of marriage, though he knew of his live-in relationship and the child. That fact, the Court said, was suppressed from the woman and her family, and the sexual intercourse that followed was on that premise:
“Though the said overt act may not be treated as rape, the same would fall under the first situation dealt with in Section 69 of the BNS, as already pointed out.”
Because the BNS offences correspond to the scheduled offences, the Court said, Section 3(2)(va) of the SC/ST Act would also be attracted where they appear prima facie from the prosecution records.
The prosecution’s case
According to the prosecution, a marriage fixation ceremony was held at the complainant’s house on July 6, 2025, for which her family says it spent Rs. 10 lakh. It alleges that the accused, who does not belong to a Scheduled Caste or Scheduled Tribe, concealed that he was in a live-in relationship and was the father of a three-year-old child. After the engagement, it is alleged, he asked her to come to Wayanad, where he compelled her to have sexual intercourse on the premise that they were to marry, and she consented on that basis.
He is accused of offences under Sections 318(4), 3(5) and 69 of the BNS and Section 3(2)(va) of the SC/ST Act. The Special Court in Kozhikode rejected his anticipatory bail plea on June 17, 2026. The complainant did not appear before the High Court despite notice under Section 15A(3) of the SC/ST Act.
The arguments
Counsel for the accused argued that cheating under Section 318(4) was not made out as no property was delivered, and that Section 69 required a promise to marry that was later withdrawn, whereas the accused was still ready to marry the complainant. A relationship without marriage and a child born in it, he said, could not by themselves show the offences, so the Section 18 bar did not apply.
The Public Prosecutor relied on the complainant’s statement and additional statement, and argued that suppressing a relationship in the nature of marriage and a child was itself deceitful means under Section 69. Arrest, custodial interrogation and a potency examination of the accused were essential for a meaningful investigation, he submitted.
Custody held necessary
The investigating officer had reported that the accused’s custody was needed to record his statement, seize the clothes he wore at the time and conduct a potency test. Agreeing, the Court held:
“Thus, in instant case, custodial interrogation is an absolute necessity for the said purposes and, in such a case, grant of anticipatory bail would definitely impede and destroy the investigation.”
Holding that the offences were prima facie made out and that the bar under Section 18 applied, “as rightly found by the learned Special Judge”, the Court dismissed the appeal. If the accused does not surrender, the investigating officer is at liberty to arrest him and proceed with the investigation.
Why the judgment matters
The judgment reads the “deceitful means” limb of Section 69 of the BNS as separate from the false-promise limb, so that an accused who says he is still willing to marry is not necessarily outside the provision if consent was obtained after concealing a material fact such as an existing live-in relationship and child. It also shows how, once a scheduled BNS offence is prima facie made out against a person from outside the SC/ST communities, Section 3(2)(va) of the SC/ST Act and the Section 18 bar on anticipatory bail follow. The findings are prima facie and limited to the bail stage.
Case Details: Udayan v. XXX & Ors. | Crl.A. No. 1231 of 2026 | 2026:KER:74972 | Arising from the order of June 17, 2026 in B.A. No. 782/2026, Special Court (SC/ST Act), Kozhikode | Court: High Court of Kerala | Bench: Justice A. Badharudeen | Date of Judgment: September 28, 2026 | Outcome: Appeal dismissed; accused directed to surrender forthwith.
Appearances: For the appellant, Advocates R. Bindu (Sasthamangalam), G. Rajagopal (Kummanam) and Ajay T.S. For the State, Public Prosecutor M.A. Shihab.