Code: Section 63 BNS
A man is said to commit “rape” if he—
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of
a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis,
into the vagina, the urethra or anus of a woman or makes her to do so with him or any
other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into
the vagina, urethra, anus or any part of body of such woman or makes her to do so with
him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do
so with him or any other person,
under the circumstances falling under any of the following seven descriptions:—
(i) against her will;
(ii) without her consent;
(iii) 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;
(iv) 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;
(v) 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;
(vi) with or without her consent, when she is under eighteen years of age;
(vii) when she is unable to communicate consent.
Explanation 1.—For the purposes of this section, “vagina” shall also include labia
majora.
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:
Provided that a woman who does not physically resist to the act of penetration shall
not by the reason only of that fact, be regarded as consenting to the sexual activity.
Exception 1.––A medical procedure or intervention shall not constitute rape.
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.
Explanation of Section 63 BNS
Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023, defines the offense of rape and lays down its essential elements. This provision ensures stringent legal action against sexual offenses while specifying exceptions.
Key Provisions:
- Definition of Rape: Covers various forms of penetration, including penile, object, or oral, under coercive or deceptive circumstances.
- Consent & Force: Defines the conditions under which consent is invalid, such as fear, intoxication, misrepresentation, or when the victim is a minor.
- Age Factor: Any sexual act with a girl below 18 years, even with consent, constitutes rape.
- Exceptions: Medical procedures and marital intercourse (if the wife is 18 or above) do not fall under the definition of rape.
Illustrations
Example 1: Rape Without Consent
A woman is forced into sexual intercourse at knifepoint. This falls under Clause (i), as it was committed against her will.
Example 2: Rape by Deception
A man impersonates the husband of a woman and has intercourse with her. Since she consented under the mistaken belief that he was her husband, it falls under Clause (iv).
Example 3: Minor Victim
A man engages in sexual activity with a 17-year-old girl with her consent. Regardless of consent, it constitutes rape under Clause (vi) because she is under 18.
Common Questions and Answers on Section 63 BNS
1. Can a woman be accused of rape under Section 63 BNS?
No, as per the definition in Section 63, only a man can be legally accused of rape.
2. Does marital rape fall under Section 63 BNS?
Only if the wife is under 18 years old. Otherwise, marital rape is not recognized as an offense under this section.
3. Is physical resistance necessary to prove the absence of consent?
No, as per Explanation 2, a woman’s lack of physical resistance does not imply consent.
4. Can rape occur without penetration?
Section 63 specifically requires some form of penetration, whether by a body part or an object, for the act to be classified as rape.
5. What legal remedies are available for a rape survivor?
A survivor can file an FIR, seek medical and psychological support, and demand legal action under BNS and relevant laws like POCSO if the victim is a minor.
Conclusion
Section 63 of BNS, 2023, aims to provide a clear legal definition of rape, ensuring justice for victims and stringent punishment for offenders. The law emphasizes consent, force, deception, and protection of minors while allowing exceptions for medical procedures and certain marital circumstances.
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