BNS Chapter V (S.63 to S.99) consolidates offences against women and children into a single chapter, replacing the scattered provisions of the IPC. The most important sub-head is rape (S.63 to S.73), which was substantially reformed by the Criminal Law (Amendment) Act 2013 and carried forward into the BNS with minor structural changes.
BNS S.63 = IPC S.375 (rape definition). BNS S.64 = IPC S.376 (punishment). BNS S.65 = IPC S.376AB/376DA (child rape). BNS S.70 = IPC S.376D (gang rape). BNS S.74 = IPC S.354 (outraging modesty). BNS S.75 = IPC S.354A (sexual harassment). BNS S.77 = IPC S.354C (voyeurism). BNS S.78 = IPC S.354D (stalking). Confidence: high, structure matches the gazetted text.
Rape: Definition (S.63)
A man is said to commit rape if he performs any of four acts (penetration, insertion, manipulation, or oral application) under any of seven descriptions:
| Description | Content |
|---|---|
| (i) Against her will | She positively does not want the act |
| (ii) Without her consent | She has not given unequivocal voluntary agreement |
| (iii) Consent by fear | Consent obtained by putting her or a person she is interested in, in fear of death or hurt |
| (iv) Consent by impersonation | She believes the man is her husband or another man to whom she is lawfully married |
| (v) Consent by intoxication or stupefaction | At the time of giving consent she is unable to understand the nature and consequences |
| (vi) Under 18 | With or without consent, if she is under eighteen |
| (vii) Unable to communicate consent | Physical or mental inability to communicate |
Consent (Explanation 2)
"Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act."
Proviso: A woman who does not physically resist shall not by reason only of that fact be regarded as consenting.
The Marital Rape Exception (Exception 2)
"Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape."
This exception survives in the BNS. A constitutional challenge is pending before the Supreme Court (as of the date of this note). For examination purposes, state the law as enacted and note the pending challenge.
Punishment for Rape
| Section | Situation | Punishment |
|---|---|---|
| S.64(1) | Rape (general) | Not less than 10 years rigorous imprisonment, may extend to life, plus fine |
| S.64(2) | Aggravated rape (by police officer, public servant, armed forces, hospital staff, relative/guardian, during communal violence, on pregnant woman, on disabled woman, repeat offender, etc.) | Not less than 10 years, may extend to life meaning remainder of natural life, plus fine |
| S.65(1) | Rape of child under 16 | Not less than 20 years, may extend to life, plus fine |
| S.65(2) | Rape of child under 12 | Not less than 20 years, may extend to life or death, plus fine |
| S.66 | Rape causing death or persistent vegetative state | Not less than 20 years, may extend to life or death |
| S.70(1) | Gang rape (above 18) | Not less than 20 years, may extend to life, plus fine |
| S.70(2) | Gang rape of child under 18 | Life (remainder of natural life) or death, plus fine |
| S.71 | Repeat offenders | Life (remainder) or death |
Other Sexual Offences against Women (S.74 to S.79)
| Section | Offence | Punishment |
|---|---|---|
| S.74 | Assault or criminal force to outrage modesty | 1 to 5 years + fine |
| S.75 | Sexual harassment (physical contact, demand for sexual favours, showing pornography, sexually coloured remarks) | Up to 3 years or fine or both (for (i) to (iii)); up to 1 year or fine or both (for (iv)) |
| S.76 | Assault with intent to disrobe | 3 to 7 years + fine |
| S.77 | Voyeurism | 1 to 3 years + fine (first offence); 3 to 7 years + fine (repeat) |
| S.78 | Stalking (following despite clear disinterest, or monitoring electronic communication) | Up to 3 years + fine (first); up to 5 years + fine (repeat) |
| S.79 | Word, gesture or act to insult modesty | Up to 3 years simple imprisonment + fine |
New in BNS: S.69 (Sexual Intercourse by Deceitful Means)
"Whoever, by deceitful means or by making promise to marry to a woman without any intention of fulfilling the same, has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment up to 10 years and fine."
"Deceitful means" includes: inducement for, or false promise of, employment or promotion, or marrying by suppressing identity.
Key Judicial Principles
Facts: A tribal girl was raped by two police constables inside the police station. The Sessions Court acquitted; the High Court convicted. The Supreme Court reversed the HC and acquitted, holding that the girl had not raised an alarm and there were no marks of resistance, so consent could be inferred.
Issue: Whether absence of resistance implies consent.
Held: Acquitted. (This decision was widely criticised as conflating submission with consent, and directly led to the Criminal Law (Amendment) Act 1983 and later the 2013 Amendment.)
Relevance: Cite as the catalyst for reform. The BNS Explanation 2 to S.63 (not physically resisting does not mean consent) is the legislative response to this case.
Facts: The accused was convicted of rape. The High Court acquitted on the ground that the prosecutrix's testimony was not corroborated.
Issue: Whether the testimony of a rape victim requires corroboration.
Held: The testimony of a rape victim, if found credible and trustworthy, can form the sole basis of conviction without corroboration. Insistence on corroboration amounts to adding an extra requirement that the law does not impose.
Relevance: The leading authority against the corroboration requirement. Cite wherever the defence argues absence of corroboration.
Recall Check
- Name the seven descriptions under which an act constitutes rape (S.63).
- What is the marital rape exception, and what is its present status?
- What is the minimum punishment for rape under S.64(1)?
- Does absence of physical resistance imply consent?
Key Cases
Tukaram v State of Maharashtra (1979) Tukaram v State of Maharashtra 1979
Issue: Whether absence of resistance implies consent.
Rule: (Criticised.) BNS now expressly provides that not physically resisting does not mean consent.
Held: Acquittal (reversed legislatively by amendments).
State of Punjab v Gurmit Singh (1996) State of Punjab v Gurmit Singh 1996
Issue: Whether corroboration of the prosecutrix's testimony is required.
Rule: Sole testimony of the victim, if credible, suffices without corroboration.
Held: HC acquittal reversed; conviction restored.
Distinctions
| Basis | Rape (S.63) | Outraging Modesty (S.74) |
|---|---|---|
| Nature | Penetrative sexual offence | Non-penetrative assault or criminal force |
| Consent | Absence of consent (or one of the seven descriptions) | Not relevant; the offence is the intent to outrage modesty |
| Punishment | Minimum 10 years | 1 to 5 years |
| Gender | Only a man can commit rape (S.63) | Any person may commit S.74 |
| Penetration | Required (S.63(a) to (d)) | Not required |
| Basis | S.64(1) General Rape | S.64(2) Aggravated Rape |
|---|---|---|
| Minimum punishment | 10 years RI | 10 years RI, may extend to life (remainder) |
| Aggravating factors | None needed | Police officer, public servant, relative, repeat, communal violence, etc. |
| Fine | Liable | Liable |
| Maximum | Life imprisonment | Life meaning remainder of natural life |
| Basis | S.63 (Rape) | S.69 (Sexual Intercourse by Deceit) |
|---|---|---|
| Penetration | Required | Required (sexual intercourse) |
| Consent | Absent or vitiated by one of seven descriptions | Present, but obtained by deceit or false promise to marry |
| Punishment | Minimum 10 years | Up to 10 years |
| Who | Any man | Any man |
| New/old | Carried from IPC (post-2013) | New in BNS |
Flashcards
Name the four types of acts that constitute rape under S.63.
Penetration of penis, insertion of any object or body part (not penis), manipulation causing penetration, and oral application to vagina/anus/urethra.
What are the seven descriptions under which these acts become rape?
Against her will, without consent, consent by fear, consent by impersonation, consent by intoxication/stupefaction, under 18, unable to communicate consent.
Does absence of physical resistance mean consent?
No. The proviso to Explanation 2 of S.63 expressly provides that not physically resisting does not by that fact alone constitute consent.
What is the minimum sentence for rape under S.64(1)?
10 years rigorous imprisonment.
What did State of Punjab v Gurmit Singh (1996) hold?
The sole testimony of the prosecutrix, if credible, can sustain a conviction without corroboration.
What is the marital rape exception under S.63?
Exception 2: sexual intercourse by a man with his own wife above 18 is not rape. A constitutional challenge is pending.
Exam Scenario
Problem: Kiran, a 20 year old woman, meets Nikhil at a party. Nikhil tells her he is unmarried, proposes marriage, and on the basis of that promise she consents to sexual intercourse over the next three months. She later discovers Nikhil is married with children and never intended to marry her. Separately, Priya (aged 17) is in a consensual relationship with Rahul (aged 22) and willingly engages in sexual intercourse. Advise on both.
Step 1: Test Nikhil's case under S.63 and S.69
| Provision | Application |
|---|---|
| S.63 (rape) | Consent was given. Is it vitiated? Description (iii) (fear): no fear. Description (iv) (impersonation): he impersonated an unmarried man, but this is not impersonation as the husband of another woman. The descriptions are exhaustive, and a false promise to marry does not fit any of the seven |
| S.69 (sexual intercourse by deceit/false promise to marry) | Nikhil made a promise to marry without any intention of fulfilling it. This is squarely within S.69 |
Nikhil is liable under S.69: imprisonment up to 10 years plus fine.
Why not rape: The seven descriptions in S.63 are a closed list. A false promise to marry, where no force, fear, intoxication, impersonation of a husband, or underage element exists, does not fall within any of them. The BNS created S.69 specifically for this gap.
Step 2: Test Rahul's case under S.63(vi)
Description (vi) provides: "with or without her consent, when she is under eighteen years of age."
Priya is 17. Her consent is irrelevant. Rahul committed rape under S.63 read with description (vi).
Under S.65(1), rape of a child under 16 attracts a minimum of 20 years. Priya is 17, so S.65(1) does not apply. The general punishment under S.64(1) applies: minimum 10 years rigorous imprisonment.
Step 3: Summarise
| Accused | Offence | Provision | Punishment |
|---|---|---|---|
| Nikhil | Sexual intercourse by false promise to marry | S.69 | Up to 10 years + fine |
| Rahul | Rape (victim under 18, consent irrelevant) | S.63 description (vi), punished under S.64(1) | Minimum 10 years RI, up to life |
A false promise to marry is NOT rape under S.63. The seven descriptions are exhaustive. Answers that invoke "consent obtained by misconception" are wrong because S.63 (unlike IPC S.375) defines consent specifically and does not include misconception of a general character. S.69 is the correct provision.
Consent of a minor under 18 is irrelevant. Description (vi) says "with or without her consent." A consensual relationship with a 17 year old is statutory rape. The fact that the relationship is genuine and mutual does not help Rahul.
Conclusion. Nikhil is liable under S.69, not S.63. Rahul is liable under S.63 description (vi) read with S.64(1).
See Also
- Offences Relating to Marriage : dowry death, cruelty, bigamy (S.80 to S.87).
- Offences against Children : the child-specific offences in the same chapter (S.88 to S.99).
- Right of Private Defence : S.38(c) permits causing death in defence against an assault with intent to commit rape.