Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023
Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023, provides a comprehensive definition of rape, aligning closely with the provisions of Section 375 of the Indian Penal Code (IPC), 1860. The section outlines various acts that constitute rape and specifies circumstances under which consent is not valid.
Key Provisions of Section 63
A man is said to commit rape if he:
Penetration: 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.
Insertion: 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.
Manipulation: 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.
Oral Application: Applies his mouth to the vagina, anus, or urethra of a woman, or makes her do so with him or any other person.
These acts are considered rape under the following circumstances:
Against Her Will: The act is committed against her will.(
Without Consent: The act is committed without her consent.
Consent Obtained by Fear: 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.
Consent Based on Misrepresentation: 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.
Incapacity to Understand: 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.
Age Below Eighteen: With or without her consent, when she is under eighteen years of age.(
Inability to Communicate Consent: 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 the act of penetration shall not, by reason only of that fact, be regarded as consenting to the sexual activity.
Exceptions:
A medical procedure or intervention shall not constitute rape.
Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape
It is important to note that Section 63 of the BNS has been subject to legal scrutiny. The All India Democratic Women’s Association (AIDWA) filed a Public Interest Litigation (PIL) challenging the marital rape exception under Exception 2 of Section 63. The Supreme Court of India issued notice in the PIL, acknowledging it as a constitutional challenge. The matter is scheduled for hearing in July 2024
RELATED Blog
0 comments