Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023
Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023 defines the offence of rape and outlines the circumstances under which a man is said to commit rape. This section is a critical component of the BNS, aligning with the Indian Penal Code (IPC) in terms of its definition but also introducing certain nuances and exceptions.
📜 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 of Object or Body Part: 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 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 her body or makes her do so with him or any other person.(
Oral Contact: Applies his mouth to the vagina, anus, or urethra of a woman or makes her do so with him or any other person, under any of the following circumstances:
Against her will.
Without her consent.
With her consent, obtained by putting her or any person in whom she is interested, in fear of death or hurt.(
With her consent, when she believes the man is someone to whom she is or believes herself to be lawfully married.
With her consent, when, at the time of giving such consent, due to 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
With or without her consent, when she is under eighteen years of age.
When she is unable to communicate consent.
Explanations:
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. 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:
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
⚖️ Legal Context and Implications
Alignment with IPC: Section 63 of the BNS, 2023 largely mirrors the definition of rape as provided under Section 375 of the Indian Penal Code (IPC), 1860.
Marital Rape Exception: Notably, the BNS retains the exception for marital rape, wherein sexual intercourse by a man with his wife, not being under eighteen years of age, is not considered rape. This provision has been a subject of legal and social debate.
Ongoing Legal Challenges: The All India Democratic Women’s Association (AIDWA) has filed a Public Interest Litigation (PIL) challenging the constitutionality of this marital rape exception. The Supreme Court has issued notice in this matter, indicating ongoing judicial scrutiny.
🔍 Comparison with Indian Penal Code (IPC)
| Provision | BNS, 2023 | IPC, 1860 |
|---|---|---|
| Definition of Rape | Section 63 | Section 375 |
| Marital Rape Exception | Yes | Yes |
| Minimum Age for Consent | Under 18 | Under 18 |
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