Sexual Offences under BNS formerly under Sections 375-377 of the IPC. While maintaining the core definition of rape, the BNS introduces more stringent punishments (emphasizing “remainder of natural life”) and behaviors like false promises of marriage under a distinct statutory head.
I. Section 63: “Rape”
A man is said to commit “rape” if he:
- 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
- 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
- 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
- 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:
- against her will.
- without her consent.
- 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.
- 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.
- with her consent when, at the time of giving such consent, by reason of mental illness 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.
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 to 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.
The offence is defined through four prohibited acts (Actus Reus) coupled with seven vitiating circumstances (Mens Rea/Lack of Consent).
1. Prohibited Acts
- Penile Penetration: Into vagina, mouth, urethra, or anus.
- Non-Penile Insertion: Any object or body part into vagina, urethra, or anus.
- Manipulation: Causing penetration by manipulating body parts.
- Oral-Genital/Anal Contact: Mouth to vagina, anus, or urethra.
2. The Concept of “Unequivocal Consent”
Explanation 2: Defines consent as an “unequivocal voluntary agreement” communicated through words, gestures, or any form of verbal/non-verbal communication.
Legal Illustration: A woman remains frozen in fear and does not physically resist. Under the BNS proviso, this cannot be interpreted as consent.
3. Vitiating Circumstances
- Against her will.
- Without her consent.
- Consent via fear of death or hurt (to self or others).
- Misconception of identity (believing the man is her husband).
- Incapacity (Unsoundness, Intoxication, Stupefying substances).
- Age (Under 18 years, regardless of consent).
- Inability to communicate consent.
Section 63
- Illustration 1 (The Proviso on Resistance): A woman is cornered in an elevator. She does not scream or fight back because she is in a state of “tonic immobility” (frozen by fear).
- Legal Application: Under the Proviso to Explanation 2, the lack of physical resistance cannot be argued as consent. The act is rape because there was no unequivocal voluntary agreement.
- Illustration 2 (Incapacity): A man provides a “party drug” to a woman, and while she is semi-conscious and giggling, he has sexual intercourse with her.
- Legal Application: Under Section 63(v), consent is vitiated because the administration of a stupefying substance rendered her unable to understand the nature and consequences of the act.
Section 64: Punishment for Rape
- Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine.
- Whoever,
- being a police officer, commits rape,
- within the limits of the police station to which such police officer is appointed; or
- in the premises of any station house; or
- on a woman in such police officer’s custody or in the custody of a police officer subordinate to such police officer; or
- being a public servant, commits rape on a woman in such public servant’s custody or in the custody of a public servant subordinate to such public servant; or
- being a member of the armed forces deployed in an area by the Central Government or a State Government commits rape in such area; or
- being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s institution, commits rape on any inmate of such jail, remand home, place or institution; or
- being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or
- being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or
- commits rape during communal or sectarian violence; or
- commits rape on a woman knowing her to be pregnant; or
- commits rape, on a woman incapable of giving consent; or
- being in a position of control or dominance over a woman, commits rape on such woman; or
- commits rape on a woman suffering from mental illness or physical disability; or
- while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or
- commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine.
- being a police officer, commits rape,
Explanation: For the purposes of this sub-section,
- “armed forces” means the naval, army and air forces and includes any member of the Armed Forces constituted under any law for the time being in force, including the paramilitary forces and any auxiliary forces that are under the control of the Central Government or the State Government;
- “hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation;
- “police officer” shall have the same meaning as assigned to the expression “police” under the Police Act, 1861;
- “women’s or children’s institution” means an institution, whether called an orphanage or a home for neglected women or children or a widow’s home or an institution called by any other name, which is established and maintained for the reception and care of women or children.
Classification of the offence:
- 64(1) – Rigorous imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine.
- 64(2) – Rigorous imprisonment for not less than 10 years but which may extend to imprisonment for life which shall mean the remainder of that person’s natural life and fine.
- Cognizable
- Non-bailable
- Triable by Court of Session
- The general punishment for rape is rigorous imprisonment (RI) for a minimum of ten years, which may extend to imprisonment for life, along with a fine. However, aggravated circumstances attract a harsher penalty of rigorous imprisonment for life (meaning the remainder of the person’s natural life) and a fine. These aggravated cases include rape committed by:
- A police officer on a woman in their custody or within police premises.
- A public servant or a member of the armed forces deployed in an area.
- Management or staff of a jail, remand home, women’s/children’s institution, or hospital on an inmate or patient.
- A relative, guardian, teacher, or someone in a position of trust, control, or dominance.
- Anyone committing rape during communal violence, on a pregnant woman, on a woman incapable of giving consent, or on a woman with physical or mental disabilities.
- Anyone causing grievous bodily harm, disfigurement, or endangering the woman’s life, or committing rape repeatedly on the same woman.
- Practical Example / Illustration: A police officer commits rape on a woman held in his custody at the police station. Because of his position of authority and custody, he will be punished with rigorous imprisonment for the remainder of his natural life and a fine.
Section 64(2) (Aggravated Rape by Authority)
- Practical Example: A superintendent of a juvenile home has sexual intercourse with an 18-year-old inmate. Even if the inmate “agreed” to the act to gain better food or facilities, the law views this through the lens of power dynamics.
- Legal Application: This falls under Section 64(2)(d). Because the offender is in a position of management over a place of custody, the law imposes a stricter punishment (remainder of natural life).
Section 65: Punishment for Rape in Certain Cases (Minor Victims)
- Whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine;
Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim;
Provided further that any fine imposed under this sub-section shall be paid to the victim. - Whoever, commits rape on a woman under twelve years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and with fine or with death;
Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim;
Provided further that any fine imposed under this section shall be paid to the victim.
Classification of offence
- 65(1) – Rigorous imprisonment for not less than 20 years but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life and fine..
- 65(2) – Rigorous imprisonment for not less than 20 years but which may extend to imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life and with fine or death.
- Cognizable
- Non-bailable
- Triable by Court of Session
- This section provides severe punishments for the rape of minors:
- Victim under 16 years: Punished with RI for a minimum of twenty years, extending to imprisonment for the remainder of the person’s natural life, plus a fine.
- Victim under 12 years: Punished with RI for a minimum of twenty years, extending to imprisonment for the remainder of natural life, or with the death penalty, plus a fine.
- The fine imposed must be just and reasonable to cover the victim’s medical expenses and rehabilitation, and must be paid directly to the victim.
- Practical Example / Illustration: A man commits rape on a 10-year-old child. Because the victim is under 12 years of age, the court can sentence the offender to death or to imprisonment for the rest of his natural life.
Section 66: Punishment for Causing Death or Persistent Vegetative State
IPC Section 376A
Whoever, commits an offence punishable under sub-section (1) or sub-section (2) of section 64 and in the course of such commission inflicts an injury which causes the death of the woman or causes the woman to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, or with death.
Classification of offence
- Rigorous imprisonment for not less than 20 years but which may extend to imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life or death.
- Cognizable
- Non-bailable
- Triable by Court of Session
- If an offender commits rape (under Section 64 or 65) and inflicts an injury that causes the woman’s death or leaves her in a persistent vegetative state, the punishment is RI for a minimum of twenty years to imprisonment for the remainder of natural life, or death.
- Practical Example / Illustration: During the commission of rape, the offender severely beats the victim, causing severe brain damage that leaves her in an irreversible coma (persistent vegetative state). The offender is liable to receive the death penalty or life imprisonment.
Section 67: Sexual Intercourse by Husband upon his Wife During Separation
IPC Section 376B
Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine.
Explanation: In this section, “sexual intercourse” shall mean any of the acts mentioned in clauses (a) to (d) of section 63.
Classification of offence
- Imprisonment for not less than 2 years but which may extend to 7 years and fine.
- Cognizable (only on the complaint of the victim)
- Bailable
- Triable by Court of Session
- If a husband has sexual intercourse with his wife without her consent while they are living separately (whether under a decree of separation or otherwise), he shall be punished with imprisonment between two to seven years and a fine.
- Practical Example / Illustration: A couple is legally separated and living apart. The husband visits the wife and forces her into sexual intercourse without her consent. He can be imprisoned for up to seven years.
Section 68: Sexual Intercourse by a Person in Authority
IPC Section 376C
Whoever, being:
- in a position of authority or in a fiduciary relationship; or
- a public servant; or
- superintendent or manager of a jail, remand home or other place of custody established by or under any law for the time being in force, or a women’s or children’s institution; or
- on the management of a hospital or being on the staff of a hospital, abuses such position or fiduciary relationship to induce or seduce any woman either in his custody or under his charge or present in the premises to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than five years, but which may extend to ten years, and shall also be liable to fine.
Explanation 1: In this section, “sexual intercourse” shall mean any of the acts mentioned in clauses (a) to (d) of section 63.
Explanation 2: For the purposes of this section, Explanation 1 to section 63 shall also be applicable.
Explanation 3: “Superintendent”, in relation to a jail, remand home or other place of custody or a women’s or children’s institution, includes a person holding any other office in such jail, remand home, place or institution by virtue of which such person can exercise any authority or control over its inmates.
Explanation 4: The expressions “hospital” and “women’s or children’s institution” shall respectively have the same meaning as in Explanation to sub-section (2) of section 64.
Classification of offence
- Rigorous imprisonment for not less than 5 years, but which may extend to 10 years and fine.
- Cognizable
- Non-bailable
- Triable by Court of Session
- If a person in a position of authority, a public servant, or someone on the management/staff of a hospital, jail, or remand home abuses their position or fiduciary relationship to induce or seduce a woman in their custody or charge into sexual intercourse (even if it does not technically amount to the offence of rape), they shall be punished with rigorous imprisonment between five to ten years and a fine.
- Practical Example / Illustration: A hospital superintendent uses his position to manipulate and seduce a female patient under his care into having sexual intercourse. Even if her consent was technically obtained through manipulation rather than force, his abuse of authority makes him liable for 5 to 10 years of rigorous imprisonment.
Section 69: Sexual Intercourse by Employing Deceitful Means, etc.
Whoever, by deceitful means or by making promise to marry a woman without any intention of fulfilling the same, and has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.
Explanation: “deceitful means” shall include the false promise of employment or promotion, inducement or marring after suppressing identity.
Classification of offence
- Imprisonment which may extend to 10 years and fine.
- Cognizable
- Non-bailable
- Triable by Court of Session
- This is a specific offence for having sexual intercourse (not amounting to rape) by employing deceitful means or making a false promise to marry without the intention of fulfilling it. Deceitful means include inducements like a false promise of employment, promotion, or suppressing one’s true identity. The punishment is imprisonment up to ten years and a fine.
- Practical Example / Illustration: A man assumes a fake identity and promises to marry a woman solely to convince her to have sexual intercourse, with absolutely no intention of ever marrying her. He is guilty under this section and can be imprisoned for up to 10 years.
- Legal Application: Recent High Court rulings clarify this is a “breach of promise” due to circumstances, not a “false promise” at the inception. This would likely not attract Section 69.
Section 70: Gang Rape
IPC Section 376D
- Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person’s natural life, and with fine;
Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim;
Provided further that any fine imposed under this sub-section shall be paid to the victim. - Where a woman under eighteen years of age is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and with fine, or with death;
Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim;
Provided further that any fine imposed under this sub-section shall be paid to the victim.
Classification of offence
- 70(1) – Rigorous imprisonment for not less than 20 years but which may extend to imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life and fine.
- 70(2) – Imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life and with fine or with death.
- Cognizable
- Non-bailable
- Triable by Court of Session
- When a woman is raped by one or more persons acting in a group or in furtherance of a common intention, each person is deemed to have committed the offence of rape.
- Adult Victim: Punished with RI of at least twenty years, extending to imprisonment for the remainder of natural life, and a fine.
- Victim under 18 years: Punished with imprisonment for the remainder of natural life, or with death, and a fine.
- Fines must cover the victim’s medical and rehabilitation expenses.
- Practical Example / Illustration: Three individuals plan and execute the rape of a 17-year-old girl. Because they acted with common intention and the victim is under 18, all three perpetrators will face the death penalty or imprisonment for the rest of their natural lives.
Section 71: Punishment for Repeat Offenders
Whoever has been previously convicted of an offence punishable under section 64 or section 65 or section 66 or section 67 and is subsequently convicted of an offence punishable under any of the said sections shall be punished with imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life, or with death.
Classification of offence
- Imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life or with death.
- Cognizable
- Non-bailable
- Triable by Court of Session
- Anyone who has been previously convicted of an offence under Sections 64, 65, 66, or 70 (various forms of rape and gang rape) and is subsequently convicted again under any of these sections, shall be punished with imprisonment for the remainder of their natural life, or with death.
- Practical Example / Illustration: An individual who previously served a sentence for rape under Section 64 is released and later commits gang rape under Section 70. As a repeat offender, the court will sentence him to the death penalty or imprisonment for the rest of his natural life.
II. Punishment (Sections 64-71)
| Section | Offence Category | Punishment (BNS) |
| 64(1) | Rape Simpliciter | Min 10 years to Life + Fine. |
| 64(2) | Aggravated Rape (Police, Public Servant, Fiduciary) | Min 10 years to Life (Remainder of Natural Life) + Fine. |
| 65(1) | Victim under 16 years | Min 20 years to Life (Natural Life) + Fine. |
| 65(2) | Victim under 12 years | Min 20 years to Life (Natural Life) or Death + Fine. |
| 66 | Death or Persistent Vegetative State | Min 20 years to Life (Natural Life) or Death. |
| 70(1) | Gang Rape | Min 20 years to Life (Natural Life) + Fine. |
| 70(2) | Gang Rape of Minor (Under 18) | Life (Natural Life) or Death. |
| 71 | Repeat Offenders | Life (Natural Life) or Death. |
III. Critical Judicial Interpretations & Citations
🔹 1. Patan Jamal Vali v. State of Andhra Pradesh (2021/Reaffirmed 2024):
SC emphasized the Intersectional Lens. When dealing with marginalized victims, “doing nothing” is an active display of will, and lack of resistance is not consent.
🔹2. Kerala High Court (2025 SCC OnLine Ker 3069):
Clarified that Section 69 BNS requires “Deceit at Inception.” If the relationship was consensual and broke down due to valid external reasons (e.g., family opposition), it does not attract criminal liability.
🔹 3. Aparna Bhat v. State of MP (2021):
SC guidelines on avoiding gender stereotypes in judicial language—relevant for Section 63 interpretation.
🔹 4. State of Punjab v. Gurmit Singh
🔹 Finding
- Testimony of prosecutrix alone is sufficient for conviction
- No need for corroboration if trustworthy
🔹 Application under BNS
👉 Courts continue to apply this principle under Section 63 BNS
🔹 2. Deepak Gulati v. State of Haryana
🔹 Finding
- False promise of marriage = rape only if no intention from beginning
🔹 Relevance to BNS
👉 Directly linked to Section 69 BNS (deceitful intercourse)
🔹 3. Mukesh v. State (Nirbhaya case)
🔹 Finding
- In rarest of rare cases → death penalty justified
🔹 Application
👉 Now directly applicable under:
- Section 64 BNS
- Section 66 BNS (death or vegetative state)
🔹 4. Independent Thought v. Union of India
🔹 Finding
- Minor wife exception unconstitutional
- Consent of wife is important
🔹 Relevance
👉 Influences interpretation of:
- Section 67 BNS
🔹 5. State of Karnataka v. Krishnappa
🔹 Finding
- Abuse of position = aggravated offence
🔹 Application
👉 Directly relevant to Section 68 BNS
Read More: What is Sessions Trial?
BNS Sec 75 Sexual Harassment in Hindi
📰 RECENT HIGH COURT INTERPRETATIONS
🔹 Allahabad High Court (2025)
👉 Finding
- Section 69 applies only when deceit is proved
- Mere failed relationship ≠ offence
👉 Court clarified:
“Law punishes deceit, not disappointment”
🔹 Karnataka High Court (2025)
👉 Finding
- Concern over misuse of Section 69
- Consensual relationships being criminalised
👉 Court granted relief noting lack of clear deception
🔹 Madras High Court (2025)
👉 Finding
- Criminal law cannot be used for personal relationship disputes
- No offence unless fraudulent intent exists from beginning
🔹 Combined Legal Principle (VERY IMPORTANT)
👉 For Section 69 BNS:
- Consent obtained by false promise = offence only if intention was dishonest from start
- Relationship breakdown ≠ criminal liability
🔹 6. Om Prakash v. State of Haryana
🔹 Finding
- Each accused is equally liable
- Common intention sufficient
🔹 Application
👉 Directly applicable under Section 70 BNS
🔹 7. Swamy Shraddananda v. State of Karnataka
🔹 Finding
- Life imprisonment can mean till natural life
🔹 Application
👉 Important for:
- Section 71 BNS (repeat offenders → life or death)
IV. FAQs
- Q: Is Marital Rape a crime under BNS?
A: No. Exception 2 to Section 63 retains the immunity for sexual acts by a man with his wife (if she is above 18). However, Section 67 punishes sex with a separated wife without consent. - Q: What is the difference between Section 63 and Section 69?
A: Section 63 (Rape) involves lack of consent or forced consent. Section 69 involves “consensual” sex where consent was vitiated by fraud (e.g., false promise of marriage), not amounting to rape. - Q: Does BNS recognize male or transgender rape?
A: No. Section 63 remains gender-specific: “A man is said to commit rape… on a woman.” - Q: What does “Remainder of Natural Life” mean?
A: It means the convict will stay in prison until death, without the possibility of standard remission after 14 years. - Q: Can a victim’s past sexual history be used as evidence?
A: No. Following Section 114A and judicial precedents, the character of the victim is irrelevant to the question of consent in the specific act. - Q: Is “digital penetration” covered?
A: Yes. Section 63(b) includes “inserts… any part of the body, not being the penis.” - Q: What is the age of consent under BNS?
A: It remains 18 years. Any sexual act with a person under 18 is rape, even with “consent.” - Q: Who pays the fine in minor rape cases?
A: Under Section 65, the fine must be “just and reasonable” and must be paid directly to the victim for medical and rehab expenses. - Q: Is there a time limit to file an FIR under Section 69?
A: While there is no statutory limit, courts view long delays as a ground for granting anticipatory bail if it suggests retaliation. - Q: What is the punishment for revealing the victim’s name?
A: Under Section 72, it is punishable by up to 2 years imprisonment and a fine.