Section 63 Of The Bharatiya Nyaya Sanhita, 2023
Searching for Section 63 of The Bharatiya Nyaya Sanhita, 2023 it also know as Section 62 of BNS Act 2023.
Section 63 of Bharatiya Nyaya Sanhita (BNS) talks about the offence of “Rape”.
Section 63 Of The Bharatiya Nyaya Sanhita, 2023
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 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.
Corresponding Section of IPC: S. 375 of Act 45 of 1860.
Important Case law regarding rape law in India
► Rape.—Offence of rape is against entire society. It is extremely reprehensible and hated crime which defiles and degrades victim physically as well as mentally and shakes very core of life and dignity, Anurag Soni v. State of Chhattisgarh, (2019) 13 SCC 1.
► Intention/Consent/Mens Rea.—“Consent” is stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Inference as to consent can be drawn on the basis of evidence or probabilities of the case, with regard to relevant
circumstances, Kaini Rajan v. State of Kerala, (2013) 9 SCC 113.
► Underage victim.—Where age of victim was about 14 years at the time of offence, question of consent was of no consequence, State of H.P. v. Shree Kant Shekari, (2004) 8 SCC 153.
► Consensual sexual relationship.—Court must ascertain whether both parties were ad idem on essential features, Vinod Kumar v. State of Kerala, (2014) 5 SCC 678. Consent given under misconception of fact is no consent in eyes of law but, misconception of fact, has to be in proximity of time to occurrence, Maheshwar Tigga v. State of Jharkhand, (2020) 10 SCC 108.
► Sex with minor wife.—Sexual intercourse with minor (below 18 years) wife is rape. Exception 2 to Section 375 IPC is arbitrary, capricious, whimsical and violative of Article 14, 15 and 21 of the Constitution of India. However, the verdict will apply prospectively, Independent Thought v. Union of India, (2017) 10 SCC 800.
Section 198(6) of the CrPC [BNSS, 2023 S. 219] will apply to cases of rape of “wives” below 18 years, and cognizance can be taken only in accordance with the provisions of Section 198(6) of the Code, Independent Thought v. Union of India, (2017) 10 SCC 800.
► Meaning of “consent” with respect to Section 375 IPC.—“Consent” with respect to Section 375 IPC involves an active understanding of circumstances, actions and consequences of proposed act. Individual who makes a reasoned choice to act after evaluating various alternative actions (or inaction) as well as various possible consequences flowing from such action or inaction, consents to such action, Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608.
► Consent under misconception of fact.—While Section 90 of Penal Code [BNS, 2023 S. 28] does not define term “consent”, “consent” based on a “misconception of fact” is not consent in the eye of law. Thus, in case of woman engaging in sexual relations on false promise to marriage, her “consent” is based on “misconception of fact”, and such sexual act(s) will amount to rape, Pramod Suryabhan Pawar v. State Of Maharashtra, (2019) 9 SCC 608, See also Anurag Soni v. State of Chhattisgarh, (2019) 13 SCC 1.