Sexual Offences Under the BNS: Rape and Consent

Since 1 July 2024, rape is defined in Section 63 of the Bharatiya Nyaya Sanhita, 2023 (BNS) and punished under Section 64, replacing Sections 375 and 376 of the IPC. The heart of the offence is consent: under Explanation 2 to Section 63, consent means an unequivocal voluntary agreement, shown by words, gestures or any other communication, to the specific sexual act, and silence or lack of physical resistance does not by itself mean consent. The structure of the old law is largely carried over, so the leading Supreme Court cases decided under the IPC still guide how courts read the new sections.

This explainer is written for B.A. LL.B. and LL.B. students preparing for criminal law papers, and for any reader who wants to understand what the law actually says. If you are a student in Nagercoil revising for semester exams, the aim is to give you the section numbers, the leading cases and a structure you can reproduce under time pressure.

Where are the sexual offences in the BNS?

The BNS (Act 45 of 2023, assented to on 25 December 2023) groups the sexual offences against women together. The rape provisions run from Section 63 to Section 73. Use the old IPC numbers only as pointers:

• Section 63: definition of rape (old Section 375 IPC).
• Section 64: punishment for rape, including aggravated forms in Section 64(2) (old Section 376).
• Section 65: rape of a woman under sixteen and under twelve (old Sections 376(3) and 376AB).
• Section 66: rape causing death or a persistent vegetative state (old Section 376A).
• Section 67: intercourse by a husband with his wife during separation, without her consent (old Section 376B).
• Section 68: intercourse by a person in authority (old Section 376C).
• Section 69: intercourse by deceitful means or a false promise to marry. This is a new section with no IPC equivalent.
• Section 70: gang rape (old Sections 376D, 376DA and 376DB).
• Section 71: repeat offenders (old Section 376E).
• Sections 72 and 73: disclosing the identity of a victim and publishing court proceedings without permission (old Section 228A).

How does Section 63 define rape?

Section 63 has two parts. Clauses (a) to (d) describe the acts: penetration by the penis, insertion of an object or any other body part, manipulation of the body to cause penetration, and application of the mouth. The offence is committed by a man, while Section 2(35) defines "woman" as a female human being of any age.

The act becomes rape when it falls within any of seven descriptions:

1. against her will;
2. without her consent;
3. with consent obtained by putting her, or a person she is interested in, in fear of death or hurt;
4. with consent given because she believes the man is her lawfully married husband, when he knows he is not;
5. with consent given when, due to unsoundness of mind, intoxication or a stupefying substance, she cannot understand the nature and consequences of the act;
6. with or without her consent, when she is under eighteen years of age;
7. when she is unable to communicate consent.

Two exceptions follow. Exception 1 says a medical procedure or intervention is not rape. Exception 2 says sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen, is not rape.

What does consent mean in law?

Explanation 2 is the provision examiners expect you to quote. Consent must be unequivocal and voluntary, and it must relate to the specific act. The proviso adds that a woman who does not physically resist penetration is not, for that reason alone, regarded as consenting. Take a simple example: a student in Madurai who freezes and says nothing has not consented merely because she did not push the accused away.

Students should also connect this with the general rule on consent in the General Exceptions chapter (old Section 90 IPC), which says consent given under fear or misconception of fact is not valid consent. That rule is the basis of the false promise of marriage cases discussed below.

What are the punishments?

• Section 64(1): rigorous imprisonment of not less than ten years, which may extend to imprisonment for life, and fine.
• Section 64(2): aggravated rape, for example by a police officer, a public servant on a woman in custody, hospital staff, a relative or teacher, or repeated rape of the same woman. The punishment is not less than ten years, extending to imprisonment for life meaning the remainder of the person's natural life, and fine.
• Section 65: not less than twenty years for a victim under sixteen; for a victim under twelve, death is also available. The fine must meet the victim's medical expenses and rehabilitation and is paid to her.
• Section 70(1): in gang rape each person is deemed to have committed rape, with not less than twenty years. Under Section 70(2), where the woman is under eighteen, the punishment is life for the remainder of natural life, or death.
• Section 69: up to ten years and fine.

Offences against children are also governed by the POCSO Act, 2012, which you should study alongside these sections.

How have the courts read consent?

Independent Thought v. Union of India (Supreme Court, 2017): the Court held that sexual intercourse with a girl below eighteen is rape whether or not she is married, and read down the old marital exception, which had protected husbands of wives aged fifteen to eighteen. The Court expressly left out the question of marital rape of adult women. The BNS now writes the age of eighteen into Exception 2.

Uday v. State of Karnataka (2003) and Deepak Gulati v. State of Haryana (2013): these drew the line between a false promise made from the start and a genuine promise that later fails.

Pramod Suryabhan Pawar v. State of Maharashtra (Supreme Court, 2019): the Court set a two part test. The promise of marriage must have been false and given in bad faith with no intention of keeping it when made, and the false promise must bear a direct nexus to the woman's decision to engage in the act.

Ravi v. State (Madras High Court, 29 July 2022): Justice Sunder Mohan applied the Pawar test and set aside a conviction under Sections 376 and 417 IPC, holding that the prosecution had not shown the accused never intended to marry. On the facts, this was a breach of promise, not rape.

Section 69 now gives this group of cases its own home. Where intercourse is obtained by deceitful means, including false promises of a job or promotion, or marrying by suppressing identity, and it does not amount to rape, Section 69 applies.

How should you answer a rape question in an exam?

1. Name the provision: Section 63 BNS, with Section 375 IPC as a pointer.
2. Identify the act under clauses (a) to (d).
3. Pick the relevant description from the seven, and quote Explanation 2 on consent.
4. Check the exceptions, especially the age limit in Exception 2.
5. Apply the case law, such as the Pawar test for a promise to marry, and consider Section 69 as an alternative charge.
6. State the punishment under Section 64, 65 or 70.

For a problem question, finish with a clear conclusion on liability. Examiners reward a precise section number more than a long essay.

Sources

• India Code: The Bharatiya Nyaya Sanhita, 2023: official record of Act 45 of 2023, enforced from 1 July 2024.
• PRS Legislative Research: Bharatiya Nyaya Sanhita, 2023: text of the Act as published in the Gazette, including Sections 63 to 73.
• Uttar Pradesh Police: BNS and IPC comparative table: section by section mapping of the new and old provisions.
• Indian Kanoon: Independent Thought v. Union of India (2017): Supreme Court judgment on the marital exception and girls under eighteen.
• Indian Kanoon: Ravi v. State (Madras High Court, 2022): application of the Pramod Suryabhan Pawar test on false promise of marriage.