BNS Section 63 – Rape

Have you ever wondered what the law says about rape in India under BNS Section 63? Sexual assault is a serious crime, and the Indian legal system has strict provisions to protect victims and punish offenders. Section 63 of the Bharatiya Nyaya Sanhita (BNS) sets the modern legal standard on rape in India. This provision updates and replaces the earlier IPC Section 375, widening the scope of the law, strengthening protections for victims, and clearly defining consent. Despite legal protections, cases of sexual violence continue to be reported, creating fear and confusion about the legal process.

In this article, you will learn:

• The meaning and scope of BNS Section 63 related to rape.
• Who can be held liable under this section?
• Punishments and legal consequences for offenders.
• Victims’ rights and legal remedies under the law.
• Important court judgments that clarify the application of this law.

What Does BNS Section 63 Cover?

A man is considered to commit rape if he engages in any sexual penetration- including with the penis, objects, or other body parts, or performs oral sex with a woman under specific circumstances (such as without consent, through intimidation, or with a woman under 18 years of age). Importantly, the absence of physical resistance is not considered consent.

• Consent: Must be given freely, without pressure, fear, or misunderstanding. Consent is invalid if it comes from deception, coercion, or the victim’s inability to understand (due to intoxication, mental issues, or age).
• Marital Exemption: A sexual act by a man with his wife is not rape only if the wife is 18 years or older.
• Clear Scope: Any act with a girl under 18 is considered rape, consent or not.

Legal Provision and Explanation of the Section

A man is said to commit "Rape" if he:

• Penetrates his penis, to any extent, into the vagina, mouth, urethra, or anus of a woman or makes her do so with him or any other person;
• Inserts, to any extent, any object or part of the body, not being the penis, into the vagina, urethra, or anus of a woman or makes her do so with him or any other person;
• Manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus, or any part of the body of such woman or makes her do so with him or any other person;
• Applies his mouth to the vagina, anus, or urethra of a woman or makes her do so with him or any other person, under the circumstances falling under any of the following seven descriptions:
• 1. Against her will;
  2. Without her consent;
  3. With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt;
  4. With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married;
  5. With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent;
  6. With or without her consent, when she is under eighteen years of age;
  7. When she is unable to communicate consent.

Illustration

Example 1: Aman, a 28-year-old man, tricks Neha, a 22-year-old woman, into believing that he is her husband by impersonating him in a dark room. Neha consents to sexual intercourse under the false belief that Aman is her husband. This situation falls under Section 63(a)(iv) of The Bharatiya Nyaya Sanhita 2023, as Neha's consent was obtained through deception.

Example 2: Vikram, a 35-year-old man, inserts his fingers into the vagina of Anjali, a 17-year-old girl. Even though Anjali does not resist, she is under eighteen years of age. This act falls under Section 63(b)(vi) of The Bharatiya Nyaya Sanhita 2023, as any sexual act with a minor, with or without consent, is considered rape.

Key Changes: IPC Section 375 vs BNS Section 63

Simple Explanation of Key Changes

• Broader Protection: The new law does not limit rape to vaginal penetration. It covers all kinds of sexual penetration, including forced oral sex and acts with objects or other body parts.
• Age of Consent Increased: The legal consent age is raised to 18 years. Any sexual act with a girl under 18 is automatically rape, even if she gives apparent consent.
• Consent Made Clear: Consent must be firm, voluntary, and informed. It is invalid if gained by threat or lie or if the woman is too drunk or mentally unfit to decide.
• Marital Exception Redefined: Marital rape is recognized if the wife is under 18, offering more protection to young wives.
• Harsher Punishment: The new law sets a tougher minimum sentence of 10 years, reflecting the seriousness of the crime.
• No More Ambiguity: A woman is not required to fight back or shout for help. Silence or lack of resistance does NOT mean she agreed.

Practical Examples

• If any man forces himself on a woman without her consent, it is rape.
• If a woman is under 18, any sexual act by a man is rape, even with her consent.
• Consent taken by threatening harm or using drugs is not valid.
• A husband cannot claim marital exemption if his wife is under 18.