Section 63 of The Bharatiya Nyaya Sanhita, 2023
Rape.
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.
Summary
- Defines rape as specific non-consensual sexual acts involving penetration, manipulation, or oral contact.
- Lists seven specific circumstances under which these acts constitute rape, including lack of consent or age-related factors.
- Specifies that consent must be an unequivocal voluntary agreement, and lack of physical resistance does not imply consent.
- Clarifies that 'vagina' includes the labia majora.
- Provides exceptions for medical procedures or interventions.
Practical examples
FAQ
1. Does a lack of physical resistance mean a woman consented to the act?
No, the law explicitly states that a woman who does not physically resist penetration shall not be regarded as consenting solely based on that fact.
2. What constitutes consent under this section?
Consent is defined as an unequivocal voluntary agreement where the woman communicates her willingness to participate in the specific sexual act through words, gestures, or verbal or non-verbal communication.
3. Are medical procedures considered rape under this section?
No, Exception 1 states that a medical procedure or intervention shall not constitute rape.
4. Does the definition of rape apply if the victim is under eighteen?
Yes, under description (vi), the act constitutes rape if the woman is under eighteen years of age, regardless of whether consent was given.
Test yourself
1.Under Section 63 of The Bharatiya Nyaya Sanhita, 2023, below what age is a female's consent to sexual intercourse legally irrelevant, making the act rape regardless of her consent?
2.Under Section 63 of the BNS, 2023, what is the legal position if a woman does not physically resist penetration?
3.Under Section 63 of the Bharatiya Nyaya Sanhita, what is Exception 2 regarding sexual acts by a husband with his wife?
4.Under Section 63 of the new penal code, the Bharatiya Nyaya Sanhita, 2023, which of the following is explicitly excluded from the definition of rape under Exception 1?