Bharatiya Nyaya Sanhita, 2023

Section 81 BNS: Cohabitation Caused by Deceitful Belief of Lawful Marriage

Section 81 of the Bharatiya Nyaya Sanhita, 2023 punishes a man who, by deceit, causes a woman who is not lawfully married to him to believe that she is lawfully married to him and, because of that belief, to cohabit or have sexual intercourse with him.

What does Section 81 BNS provide?

Essential ingredients of Section 81

Based on the statutory language, the following elements are central to the offence:

1. the accused must be a man;
2. the woman must not in fact be lawfully married to him;
3. the man must use deceit;
4. the deceit must cause the woman to believe that she is lawfully married to him; and
5. because of that belief, the woman must cohabit or have sexual intercourse with him.

Meaning of "deceit" in Section 81

Section 81 does not separately define the word "deceit". In the context of the provision, the alleged deceit must be of such a nature that it causes the woman to believe that she is lawfully married to the man when no lawful marriage exists between them.

The precise nature of the alleged deception, the woman's belief, and the causal connection between that belief and the cohabitation or sexual intercourse are therefore factual matters that ordinarily require examination of the evidence in the case.

Punishment under Section 81 BNS

Is Section 81 BNS cognizable and bailable?

The First Schedule to the Bharatiya Nagarik Suraksha Sanhita, 2023 classifies the Section 81 offence as non-cognizable and non-bailable, and states that it is triable by a Magistrate of the First Class.

Who may initiate prosecution under Section 219 BNSS?

Section 219 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with prosecution for offences against marriage. It provides that no Court shall take cognizance of an offence punishable under Sections 81 to 84 BNS except upon a complaint made by a person aggrieved by the offence, subject to the statutory exceptions contained in that section.

Section 219 also permits specified persons, with leave of the Court in the situations stated in the provision, to make a complaint on behalf of an aggrieved person who is a child, is of unsound mind, has the specified intellectual disability, is unable to complain because of sickness or infirmity, or is a woman who according to local customs and manners ought not to be compelled to appear in public.

Section 81 BNS and former Section 493 IPC

Section 81 BNS substantially carries forward the offence that was contained in Section 493 of the Indian Penal Code, 1860. The BNS provision continues to focus on deceit that creates a false belief of an existing lawful marriage and leads to cohabitation or sexual intercourse in that belief.

Related marriage offences under the BNS

Section 81 is followed by other marriage-related offences, including Section 82 concerning marrying again during the lifetime of a husband or wife, Section 83 concerning a marriage ceremony fraudulently gone through without lawful marriage, and Section 84 concerning enticing, taking away or detaining a married woman with criminal intent. The applicable provision depends on the alleged conduct and the statutory ingredients established by the evidence.

Official legal sources

For the authoritative statutory text, see the Bharatiya Nyaya Sanhita, 2023 on India Code and the Bharatiya Nagarik Suraksha Sanhita, 2023 on India Code. The Ministry of Home Affairs - New Criminal Laws page also provides official materials relating to the new criminal laws.

Important note

This page provides a general explanation of Section 81 of the Bharatiya Nyaya Sanhita, 2023. Whether the provision applies in an individual case depends on the facts, evidence, procedural law and applicable judicial decisions.