Section 63 of BNS: Rape and Its Legal Implications

Section 63 of BNS is part of Chapter 5- Offences Against Women and Children Of Sexual Offences in Bharatiya Nyaya Sanhita 2023 Act. It defines the offense of rape in accordance with Indian law, specifying acts that constitute non-consensual sexual intercourse or assault. It outlines that any physical contact or involvement without consent is considered rape, with additional provisions addressing aggravating factors such as the use of force, coercion, or deception.

Definition of BNS Section 63

Section 63 of the BNS 2023 States:

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 and Illustration of Section 63 (Bharatiya Nyaya Sanhita, 2023)

Explanation 1: For the purposes of this section, the term 'vagina' is inclusive of the labia majora.

Explanation 2: Consent refers to a clear and voluntary agreement, where a woman communicates her willingness to engage in a specific sexual act through words, gestures, or any form of verbal or non-verbal expression. However, the mere absence of physical resistance does not signify consent to sexual activity.

Exception 1: A medical procedure or intervention does not amount to rape.

Exception 2: Sexual intercourse or acts between a man and his wife, provided she is above the age of eighteen, are not regarded as rape.

Disclaimer

The examples provided are for educational purposes only and do not constitute legal advice. They should not be used for legal proceedings or decision-making. For specific legal matters, please consult a qualified legal professional.

Key Points of BNS 63

Section 63 of the Bharatiya Nyaya Sanhita (BNS) 2023 defines the offense of rape, outlining the specific circumstances under which a man is considered to have committed this crime. Here are some key pointers:

Acts Constituting Rape

Penetration: Any form of penetration of a woman's vagina, mouth, urethra, or anus by the penis, or forcing her to engage in such an act, either by the perpetrator or another person.

Insertion of Objects or Body Parts: The insertion of any object or body part (other than the penis) into the woman’s vagina, urethra, or anus, or coercing her to do the same.

Manipulation of the Body: Any action that manipulates a woman’s body to facilitate penetration into any of her genital areas, or compelling her to do so.

Oral Acts: Using the mouth to make contact with the woman’s vagina, anus, or urethra, or forcing her to perform these acts.

Circumstances That Invalidate Consent

Against Her Will: The act occurs even though the woman does not wish to participate.

Without Consent: The woman does not give her voluntary agreement for the act to take place.

Coerced Consent: Consent is obtained through threats of harm or death to her or someone she cares about, forcing her to agree.

False Identity: If a man pretends to be someone else, such as her husband, and the woman consents under the false belief that he is her spouse.

Incapacitated Consent: The woman’s ability to consent is compromised due to intoxication, mental illness, or any condition that impairs her understanding or awareness of the act.

Underage Consent: Any sexual activity with a girl under the age of 18, whether or not she consents, is classified as rape.

Inability to Communicate Consent: The woman is physically or verbally unable to express her consent, thereby making any act performed under these conditions invalid.

Explanation of Consent

Definition: Consent is a clear, voluntary, and unambiguous agreement expressed through words, actions, or other means that indicates a woman’s willingness to participate in a sexual act.

Non-Resistance is Not Consent: A lack of physical resistance does not automatically mean the woman has given consent. Consent must be explicit.

Exceptions

Medical Procedures: Any medical intervention or procedure that may involve acts of penetration or manipulation of the body is not considered rape, as long as it is part of legitimate medical care.

Marital Exception: Sexual intercourse between a husband and wife is not considered rape, as long as the wife is not under the age of 18.

Differences Between Section 63 of BNS 2023 and its equivalent IPC section 375

This section outlines the key differences between Section 63 and its equivalent Indian penal code IPC Section 375 focusing on their distinct approaches to definitions, interpretations and legal principles within the framework of criminal law.

BNS Sections/ Subsections	Subject	IPC Sections	Summary of comparison
63	Rape definition.	375	Age of Consent: 15 years is replaced by 18 years in BNS. Exception 2 of Section 63 states that 'sexual intercourse or acts by a man with his wife, the wife not being under 18 years of age, is not rape'.

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FAQs about Section 63 of the Bharatiya Nyay Sanhita (BNS)

What is Section 63 of the BNS?

Section 63 of the Bharatiya Nyaya Sanhita prescribes the general punishment for cases where no specific penalty is mentioned. It ensures accountability by allowing courts to impose a reasonable fine based on the circumstances, serving as a deterrent for less serious but punishable offenses.

What is the purpose of Section 63?

The section aims to cover offenses not explicitly penalised under other sections. By granting courts the discretion to impose fines, it ensures that no wrongdoing escapes legal consequences simply due to the absence of a predefined punishment.

Does Section 63 include imprisonment?

No, Section 63 strictly pertains to fines and does not authorise imprisonment. It serves as a financial deterrent for minor offenses, emphasising monetary penalties rather than custodial sentences.

Who decides the fine under Section 63?

The court holds the discretion to determine the fine, considering the severity of the offense, its impact, and the financial status of the offender. This ensures the punishment is proportional and equitable.

What factors influence the fine amount?

The court considers various factors such as the nature of the offense, its consequences, the offender’s intent, and their financial capacity. These factors ensure the penalty serves justice without being excessively punitive.

Is Section 63 applicable to all offenses?

Section 63 is only applicable where specific penalties are not outlined in other sections of the Bharatiya Nyaya Sanhita. For crimes with detailed punishments, those provisions take precedence.

Can Section 63 be used with other penalties?

Yes, Section 63 can complement other penalties in certain cases. If a fine is deemed appropriate along with imprisonment or other punishments under related sections, the court may impose it as an additional deterrent.