The Bharatiya Nyaya Sanhita (BNS), 2023 signifies a transformative shift in India's criminal justice system by replacing the colonial-era Indian Penal Code (IPC) of 1860 . Among its pivotal provisions is Section 63 BNS which redefines the legal structure surrounding the offense of rape . This section aims to address contemporary challenges related to sexual violence against women, ensuring that the laws are more victim-centric and reflective of modern societal values. By providing a comprehensive definition of rape emphasizing the importance of consent and outlining stringent punishment for rape in India Section 63 BNS seeks to deter sexual offences and uphold the dignity of individuals . This article delves into the nuances of Section 63 BNS, exploring its bare act language, interpretation, essential elements, scope, judicial interpretations, landmark cases, and its overall impact on crime against women and children. Explore other important Judiciary Notes.

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Section 63 BNS

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 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.

Note: "The information provided above has been sourced from the official website, i.e., Indian Code. While the content has been presented here for reference, no modifications have been made to the original laws and orders" 

Section 63 BNS provides a detailed and inclusive definition of rape. It covers various forms of non-consensual sexual acts. The law clarifies that consent must be free, voluntary, informed, and clearly communicated. Any sexual act without such consent is considered rape.

The section also includes circumstances where consent is not valid—such as when obtained through fear, deception, or when the victim is unable to give informed consent due to intoxication or mental incapacity. It also states that if the woman is below 18 years of age, any sexual act constitutes rape, regardless of consent.

To explain will and consent as per Section 63 BNS, the law states that a woman’s lack of physical resistance does not imply consent. Consent should be given out of free will and with full understanding of the nature and consequences of the act.

Additionally, Section 63 of BNS Exception 2 includes provisions related to marital rape, which exempts a husband from being charged with rape if the wife is above 18 years. This exception remains controversial. Overall, the law expands the scope of sexual offences especially in cases of gang rape and acts against minors.

Section 63 BNS : Essential Elements 

To prove an offense under Section 63 BNS, the following elements must be satisfied:

• Act of Penetration: Includes penile, object, or bodily penetration into the vagina, anus, mouth, or urethra.
• Lack of Valid Consent: The act must occur without the woman’s free and informed consent.
• Age of the Victim: If the victim is under 18, consent becomes legally irrelevant.
• Mental or Physical Incapacity: If the woman is unable to communicate consent, it is still rape.

These essential elements underline the importance of respecting autonomy, communication, and personal boundaries. They protect vulnerable groups, particularly in cases of crime against women and children.

Section 63 BNS represents a progressive, victim-focused law that expands the definition and applicability of rape. The law acknowledges a wide range of sexual offences—not just limited to penile-vaginal penetration—and includes acts such as oral sex and insertion of objects.

Its scope extends to cases where consent is manipulated through deceit or pressure, ensuring justice in complex interpersonal scenarios. It even covers incapacitation due to drugs, alcohol or mental illness.

However, Section 63 of BNS Exception 2 still exempts marital rape where the wife is above 18, which has drawn criticism for being outdated. Despite this the law’s broader scope and stronger sentencing structure reflect India’s commitment to curb crime against women and children.

Comparison with IPC Section 375

Before BNS, similar conduct was covered under Section 375 of Indian Penal Code (IPC). The transition to Section 63 BNS preserved the structure while fitting into the reformed legal framework under the Bharatiya Nyaya Sanhita.

Section 63 BNS : Judicial Interpretation

Courts have interpreted Section 63 BNS in alignment with evolving societal standards. In the famous Mahmood Farooqui case, the court examined the nuances of consent, noting that absence of resistance doesn't imply willingness.

Judges have emphasized that will and consent as defined in Section 63 BNS are not to be presumed from passive behavior or silence. Courts now prioritize the mental and emotional state of the victim over physical evidence .

Additionally, courts have strongly condemned gang rape and crimes against minors, often invoking maximum penalties. While there hasn’t been a wide body of Section 63 BNS case law yet, judicial trends from IPC-era rulings continue to influence interpretations.

Section 63 BNS : Landmark Cases

The Indian judiciary has clarified the application of laws similar to section 63 BNS through past rulings under IPC Section 375. The landmark Judgments relating to the section are as follows -

1 . Mahmood Farooqui v. State (NCT of Delhi)

The Delhi High Court explored the complexity of consent in intimate relationships. The court's controversial ruling that a "feeble no" might not always mean refusal sparked debate. It highlighted the need for legal clarity—later addressed in Section 63 BNS through a detailed definition of will and consent.

2. Tukaram v. State of Maharashtra (Mathura Case)

This case involved the custodial rape of a minor girl. The acquittal of the accused due to lack of resistance led to nationwide protests and major legal reforms. It shaped modern rape laws and pushed for stronger victim protection—now reflected in Section 63 BNS.

3. State of Punjab v. Gurmit Singh

The Supreme Court held that a rape survivor's testimony alone is enough for conviction if credible. It stressed sensitivity in handling rape trials, a principle that supports how courts interpret Section 63 BNS case law today.

4. Bodhisattwa Gautam v. Subhra Chakraborty

The court recognized rape as a violation of fundamental rights and awarded interim compensation to the victim. It emphasized justice beyond conviction—an approach echoed in the spirit of Section 63 BNS.

5. Independent Thought v. Union of India

The court ruled that sex with a minor wife (under 18) is rape, even in marriage. This judgment shaped Section 63 2 BNS, which sets 18 as the legal threshold, though the general marital rape exemption still remains under Exception 2.

Section 63 BNS : Impact 

The impact of Section 63 BNS is significant. It enhances protections against sexual violence against women, recognizes complex forms of sexual offences and introduces stronger deterrents.

By increasing the age of consent and recognizing object and oral penetration, the law brings Indian jurisprudence closer to international standards. It strengthens justice for victims of gang rape and child abuse.

Yet, the retention of Section 63 of BNS Exception 2 regarding marital rape remains a setback in the fight for gender justice.

Overall, Section 63 BNS offers a robust legal foundation to combat crime against women and children, while pushing for progressive change.

Conclusion 

Section 63 BNS is a much-needed reform in India’s rape laws. It provides a comprehensive, modern definition of rape, shifting the legal conversation toward will and consent, and broadens what constitutes sexual offences.

It replaces outdated IPC provisions and strengthens punishment for rape in India, especially for heinous crimes like gang rape. However, the continuation of the marital rape exception (Section 63 BNS Exception 2) shows that reform is still incomplete.

Going forward, consistent judicial interpretation and strong implementation are key to the success of this law. Public awareness, police training, and support systems for survivors will further enhance its effectiveness.

In conclusion, Section 63 BNS serves as a foundation for protecting dignity, ensuring justice, and tackling systemic offences against women under IPC now codified under BNS.