Rape under Section 63 BNS: Definition, Aggravated Forms and Punishment

Rape is one of the gravest offences against the person known to the criminal law. It violates the victim's bodily integrity, her autonomy, and her dignity. The Indian law of rape has evolved substantially over the last four decades, driven by public outrage over particular cases (Mathura in 1979, Bhanwari Devi in 1992, Nirbhaya in 2012, Kathua in 2018) and by the reports of expert committees (the Justice J. S. Verma Committee of 2013 being the most influential). The Bharatiya Nyaya Sanhita, 2023, in Sections 63 to 71, carries forward the reformed framework. This module walks through the definition of rape under Section 63, the seven descriptions and two exceptions, the graduated punishments under Sections 64 to 71, and the leading Indian cases from Mathura through the Nirbhaya trial to the marital rape exception debate.

1. Meaning and Concept

Rape in criminal law

Rape, in Indian criminal law, is the offence of non-consensual sexual penetration of a woman by a man. Section 63 BNS defines it comprehensively, listing seven kinds of penetration and seven circumstances in which consent is negated. The definition, in its present form, dates from the Criminal Law (Amendment) Act, 2013, which substantially widened it following the Nirbhaya case and the Verma Committee's recommendations.

The three violations: bodily, autonomy, dignity

The three interests protected

Bodily integrity. The victim's right to be free from unwanted physical invasion of her body.
Sexual autonomy. The victim's right to choose whether, when, and with whom she engages in sexual conduct.
Dignity. The victim's right to be treated as a person and not as an object of another's sexual gratification.

Evolution of the Indian law

1860 IPC: rape defined narrowly. Only peno-vaginal penetration counted. Age of consent set at ten years.
Successive amendments raising the age of consent to twelve, fourteen, sixteen (1949), and eventually eighteen (2013).
1983 amendment following the Mathura case: introduced aggravated forms of rape (custodial, gang, on pregnant woman), enhanced punishments, and Section 114A IEA (presumption against consent).
2013 amendment following the Nirbhaya case: widened the definition to include non peno-vaginal penetration; raised age of consent to eighteen; added multiple new offences (sexual harassment, disrobing, voyeurism, stalking); enhanced punishments across the board.
2018 amendment following the Kathua case: further enhanced minimum punishments; added death penalty for rape of woman under twelve years.
2023 BNS: retains the reformed framework in Sections 63 to 71; adds Section 69 (sexual intercourse by deceitful means) as a new offence.

2. Section 63 BNS: The Definition

Text of Section 63

Section 63 BNS (formerly Section 375 IPC): main paragraph

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.

Structural analysis: seven descriptions and seven circumstances

The section works in two parts. First, four categories of penetration are defined (see head 3 below, which combines closely related sub-clauses into the seven traditional descriptions). Second, seven circumstances are listed, in any of which the penetration constitutes rape (see head 4). Rape is made out where any of the acts in the first part is done under any of the circumstances in the second part.

The two exceptions

Section 63 contains two 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. (This is the marital rape exception, discussed under head 6.)

3. The Seven Descriptions of Penetration

The 2013 amendment widened the definition of rape to include non peno-vaginal forms of sexual penetration. In common judicial parlance, these are often summarised as seven descriptions (though the section text lists four sub-clauses, each covering multiple penetrations):

1. Penetration of the penis into the vagina.
2. Penetration of the penis into the mouth (oral rape).
3. Penetration of the penis into the urethra or anus.
4. Insertion of any object into the vagina, urethra or anus (object penetration).
5. Insertion of a part of the body (not being the penis) into the vagina, urethra or anus (digital or other body-part penetration).
6. Manipulation of any part of the woman's body to cause penetration into her vagina, urethra, anus or any part of her body.
7. Application of the mouth to the vagina, anus or urethra.

Any of these acts, done under any of the seven circumstances in head 4 below, constitutes rape. Section 63 is thus deliberately comprehensive, and closes the loopholes that the pre 2013 definition had left open.

4. The Seven Circumstances (Absence of Consent)

The seven circumstances under Section 63

First: against her will.
Second: without her consent.
Third: 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.
Fourth: 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.
Fifth: 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.
Sixth: with or without her consent, when she is under eighteen years of age.
Seventh: when she is unable to communicate consent.

The distinction between the first and second circumstances (against her will vs without her consent) reflects a subtle difference. Against her will covers cases of active resistance; without her consent covers cases where there was no resistance because there was no opportunity or the victim was overpowered. In practice, most cases fall under both, but the section preserves the classical distinction.

5. Consent under Section 63: The Explanation

Explanation 2 to Section 63

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.

The Explanation is one of the most important reforms of the 2013 amendment. It replaces a passive conception of consent (mere absence of resistance) with an active conception (positive communication of willingness). Two propositions:

Consent is unequivocal voluntary agreement communicated by words, gestures or other communication.
Absence of physical resistance is not by itself consent. A woman who does not fight back is not, on that account alone, consenting.

This proviso addresses the myth of the resisting rape victim: the idea that a genuine rape victim would always physically resist. Modern trauma research shows that many rape victims freeze rather than fight, and the law responds by removing the requirement of resistance from the concept of consent.

6. The Two Exceptions to Section 63

Exception 1: medical procedures

A medical procedure or intervention, though it may involve intimate contact with the body, does not constitute rape. Gynaecological examinations, obstetric interventions, and similar medical acts are outside the section, provided they are genuine medical procedures conducted in good faith with the patient's informed consent (or the emergency consent doctrine of Section 30 BNS).

Exception 2: marital rape (the wife not below eighteen)

Exception 2 to Section 63

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 marital rape exception is one of the most contested provisions in Indian criminal law. It exempts sexual intercourse by a husband with his wife (aged eighteen or above) from the offence of rape. The exception was originally set at ten years, then twelve, then fifteen. In 2013, the age was raised to fifteen. In 2017, the Supreme Court in Independent Thought v. Union of India read the age up to eighteen, so that sexual intercourse by a man with his wife below eighteen is rape.

📖 Independent Thought v. Union of India, (2017) 10 SCC 800

The Supreme Court held that Exception 2 to Section 375 IPC (now Section 63 BNS Exception 2), as it read at that time (below fifteen years), was inconsistent with the general age of consent of eighteen years established elsewhere in the criminal law. The Court read the age in the exception up to eighteen. The consequence: sexual intercourse by a man with his wife below eighteen is rape.

The broader question, whether the marital rape exception itself should be struck down, is currently before the Supreme Court after a split verdict in the Delhi High Court (RIT Foundation v. Union of India, 2022). At the time of the BNS's enactment, the exception was retained. Parliament may revisit the question, or the Supreme Court may resolve it.

7. Section 64 BNS: Punishment for Rape

Section 64(1): the general punishment

Section 64(1) BNS

Whoever, except in the cases provided for by 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.

The default punishment for rape is rigorous imprisonment for a minimum of ten years, extending to imprisonment for life, and fine. The minimum was enhanced from seven years to ten years by the 2018 amendment. The Court has no discretion to award less than ten years, save in the rare cases where mitigating factors are extraordinary.

Section 64(2): aggravated cases

Section 64(2) lists twelve aggravating circumstances in which the punishment is enhanced to rigorous imprisonment for not less than ten years, extending to life meaning the remainder of natural life, and fine:

(a) rape by a police officer within the limits of the police station to which he is appointed, or in the premises of any station house.
(b) rape by a police officer of a woman in his custody or in the custody of a police officer subordinate to him.
(c) rape by a public servant of a woman in his custody or in the custody of a public servant subordinate to him.
(d) rape by a member of the armed forces deployed in an area by the Central or a State Government.
(e) rape by a person on the staff of a jail, remand home, women's or children's institution, of a woman inmate.
(f) rape by a person on the management or staff of a hospital of a woman in that hospital.
(g) rape by a relative, guardian or teacher, or person in a position of trust or authority.
(h) rape during communal or sectarian violence.
(i) rape of a woman knowing her to be pregnant.
(j) rape of a woman incapable of giving consent.
(k) rape by a person in a position of control or dominance over the woman.
(l) rape of a woman suffering from mental or physical disability.
(m) causing grievous bodily harm or maiming or endangering the life of a woman during rape.
(n) rape repeatedly on the same woman.

8. Section 65 BNS: Rape of a Minor

Section 65(1): rape of a woman under sixteen

Section 65(1) BNS punishes rape of a woman under sixteen years of age with rigorous imprisonment of not less than twenty years, extending to imprisonment for life meaning the remainder of natural life, and fine.

Section 65(2): rape of a woman under twelve

Section 65(2) BNS punishes rape of a woman under twelve years of age with rigorous imprisonment of not less than twenty years, extending to imprisonment for life meaning the remainder of natural life, or with death, and fine. The death penalty was introduced by the 2018 amendment following the Kathua case.

These provisions must be read alongside the Protection of Children from Sexual Offences (POCSO) Act, 2012, which provides its own regime for offences against children. Where both statutes apply, the greater punishment is applied.

9. Section 66 BNS: Death or Persistent Vegetative State

Section 66 BNS (formerly Section 376A IPC)

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.

Section 66 addresses the gravest form of rape: where the victim dies or is reduced to a persistent vegetative state. Introduced by the 2013 amendment as Section 376A IPC in the aftermath of the Nirbhaya case (in which the victim's fatal injuries were of this nature), the section carries a minimum of twenty years, extending to life meaning natural life, or death. Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1, upheld the death sentence for the Nirbhaya accused under this provision.

10. Section 67 BNS: Sexual Intercourse during Separation

Section 67 BNS (formerly Section 376B IPC)

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.

Section 67 addresses a specific gap in the marital rape exception: it applies where the husband and wife are living separately, whether under a formal decree or informally. In such circumstances, sexual intercourse without consent is an offence, though not termed rape. Punishment: two to seven years. The section is a partial recognition of the wife's right to consent within marriage, though it stops short of criminalising marital rape in the ordinary marital relationship.

11. Section 68 BNS: Sexual Intercourse by Person in Authority

Section 68 BNS (formerly Section 376C IPC) punishes sexual intercourse by a person in authority with a woman in his charge, custody or under his supervision. The section applies to specified categories:

A person in a position of authority or fiduciary relationship.
A public servant.
Superintendent or manager of a jail, remand home, women's or children's institution.
Management or staff of a hospital in relation to a woman in that hospital.

Punishment: rigorous imprisonment for not less than five years, extending to ten years, and fine. The section applies even where the woman consents, on the theory that the relationship of authority vitiates consent.

12. Section 69 BNS: Sexual Intercourse by Deceitful Means

Section 69 BNS (new provision, not in IPC)

Whoever, by deceitful means or by making promise to marry to a woman without any intention of fulfilling the same, 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 to Section 69

Deceitful means shall include inducement for, or false promise of employment or promotion, or marrying by suppressing identity.

Section 69 is a new provision introduced by the BNS. It codifies as a distinct offence a category of conduct that had previously been prosecuted under Section 375 IPC on the theory of consent by misconception. The section covers:

Sexual intercourse obtained by false promise of marriage.
Sexual intercourse obtained by false promise of employment or promotion.
Sexual intercourse obtained by suppressing identity.

The section carves out this category from the offence of rape (the section applies where the intercourse does not amount to rape), reflecting the doctrinal view that consent obtained by misconception does not always negate consent for rape purposes but does deserve criminal punishment. The provision has been criticised by some commentators as reinforcing patriarchal assumptions about female sexuality and by others as necessary to protect women from exploitation.

13. Section 70 BNS: Gang Rape

Section 70(1) BNS (formerly Section 376D IPC)

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 imprisonment for life which shall mean imprisonment for the remainder of that person's natural life, and with fine.

Section 70 addresses gang rape. Two key doctrinal points:

Every member of the group is deemed to have committed the offence of rape. It is not necessary to prove that each individual physically penetrated the victim. Common intention (Section 3(5) BNS) attaches liability to all.
Punishment is rigorous imprisonment for not less than twenty years, extending to life meaning natural life, and fine.

Section 70(2): Gang rape of minor

Section 70(2) BNS (formerly Section 376DA and 376DB IPC) provides even more severe punishment for gang rape of a woman under eighteen years:

Under sixteen: life imprisonment meaning natural life, and fine.
Under twelve: life imprisonment meaning natural life, or death, and fine.

14. Section 71 BNS: Repeat Offenders

Section 71 BNS (formerly Section 376E IPC)

Whoever has been previously convicted of an offence punishable under Section 64 or Section 65 or Section 66 or Section 70 and is subsequently convicted of an offence punishable under any of the said sections shall be punished with imprisonment for life which shall mean the remainder of that person's natural life, or with death.

Section 71 provides for enhanced punishment (life meaning natural life, or death) for persons previously convicted of specified serious sexual offences who are again convicted of any such offence. The section was introduced by the 2013 amendment and reflects the classical common law principle of enhanced punishment for repeat offenders in specified categories.

15. Judicial Elaboration and Landmark Cases

📖 Tukaram v. State of Maharashtra, (1979) 2 SCC 143 (the Mathura case)

Two policemen were charged with the rape of Mathura, a young tribal girl, at Desai Ganj Police Station. The Supreme Court acquitted them on the ground that Mathura's not having raised an alarm suggested that the intercourse was consensual. The judgment sparked nationwide protests and led to the 1983 amendments introducing the aggravated categories of rape and the presumption against consent in Section 114A IEA (now Section 120 BSA).

📖 State of Punjab v. Gurmit Singh, (1996) 2 SCC 384

The Supreme Court held that in cases of rape, the evidence of the prosecutrix, if reliable, is enough for conviction. Corroboration is not always required. Delay in filing FIR is not fatal. The medical evidence should be considered in totality. The judgment reformed the evidentiary treatment of rape victims and remains foundational.

📖 Bhupinder Sharma v. State of Himachal Pradesh, (2003) 8 SCC 551

The Supreme Court reiterated that in cases of rape, the testimony of the prosecutrix, if inspiring confidence, is enough for conviction. Corroboration is a rule of prudence, not law. Where the prosecutrix's evidence is credible, no further evidence is required.

📖 Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1 (Nirbhaya case)

The Supreme Court confirmed the death sentence for four accused in the December 2012 Delhi gang rape and murder. The Court applied the rarest of rare doctrine, holding that the brutality of the offence and the moral revulsion of society justified the ultimate punishment. The case is a landmark modern application of Sections 376A and 376D IPC (now Sections 66 and 70 BNS).

📖 Independent Thought v. Union of India, (2017) 10 SCC 800

Discussed above. The Supreme Court read Exception 2 to Section 375 IPC (now Section 63 BNS Exception 2) to hold that sexual intercourse with a wife below eighteen years of age is rape.

📖 Aparna Bhat v. State of Madhya Pradesh, (2021) 3 SCC 407

The Supreme Court issued detailed guidelines against victim blaming, patriarchal stereotyping, and inappropriate bail conditions. Courts were directed not to require or accept mediation with the accused, not to grant bail on conditions such as tying a rakhi, and not to comment on the victim's character.

📖 State of Maharashtra v. Chandraprakash Kewalchand Jain, AIR 1990 SC 658

The Supreme Court held that a woman who has been sexually assaulted is not an accomplice, and her evidence is not to be treated as such. The judgment is important for the evidentiary treatment of the prosecutrix.

📖 Deelip Singh alias Dilip Kumar v. State of Bihar, (2005) 1 SCC 88

The Supreme Court considered consent obtained by false promise of marriage. The Court held that where the accused had no intention of marrying from the start, consent was obtained by misconception of fact within Section 90 IPC (now Section 28 BNS), and rape was made out. This line of case law prompted the BNS to codify the offence as Section 69.

📖 State of UP v. Chhoteylal, (2011) 2 SCC 550

The Supreme Court held that in cases of rape, delay in filing FIR should be viewed with compassion. A young woman, particularly from a rural background, may take time to come to terms with what has happened and to approach the authorities. Delay is not fatal.

16. Sentencing Considerations

Section 64(1) BNS sets a mandatory minimum of ten years rigorous imprisonment for ordinary rape. Section 65(2) sets a mandatory minimum of twenty years, extending to life or death, for rape of a woman under twelve. These mandatory minimums reflect the legislative choice to remove judicial discretion in the ordinary case.

The Supreme Court, in cases such as Bachan Singh v. State of Punjab, (1980) 2 SCC 684, and Machhi Singh v. State of Punjab, (1983) 3 SCC 470, has developed the rarest of rare doctrine for capital punishment. Where death sentence is available (rape of a woman under twelve, rape causing death or persistent vegetative state, gang rape of a woman under twelve, repeat offender), the Court applies the rarest of rare test to decide whether to impose it. Aggravating factors include the brutality of the offence, the vulnerability of the victim, and the offender's callousness. Mitigating factors include the offender's age, background, and the possibility of reform.

The Court has emphasised, particularly in Aparna Bhat, that inappropriate leniency in sexual offence cases sends a chilling message to victims and society. Sentencing must reflect the gravity of the offence and the harm to the victim.

17. Consolidated Landmark Judgments

Tukaram v. State of Maharashtra, (1979) 2 SCC 143. Mathura case. Led to 1983 amendments.
Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217. Testimony of prosecutrix. Corroboration not always required.
State of Maharashtra v. Chandraprakash Kewalchand Jain, AIR 1990 SC 658. Prosecutrix not an accomplice.
State of Punjab v. Gurmit Singh, (1996) 2 SCC 384. Evidentiary treatment of rape victims.
Bhupinder Sharma v. State of Himachal Pradesh, (2003) 8 SCC 551. Prosecutrix's testimony sufficient.
Deelip Singh v. State of Bihar, (2005) 1 SCC 88. Consent by false promise of marriage. Prompted Section 69 BNS.
State of UP v. Chhoteylal, (2011) 2 SCC 550. Delay in FIR to be viewed with compassion.
Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1. Nirbhaya case. Death sentence confirmed under rarest of rare doctrine.
Independent Thought v. Union of India, (2017) 10 SCC 800. Marital rape exception read down for wives below 18.
Aparna Bhat v. State of Madhya Pradesh, (2021) 3 SCC 407. Guidelines against victim blaming.
State (NCT of Delhi) v. Pankaj Chaudhary, (2019) 11 SCC 575. Application of the enhanced punishment under Section 376AB IPC (now Section 65(2) BNS).
Rajesh Sharma v. State of UP, (2018) 10 SCC 472. Prosecution under Section 498A (dowry cruelty) and rape prosecutions together.
Anurag Soni v. State of Chhattisgarh, (2019) 13 SCC 1. False promise of marriage and consent. Framework for Section 69 BNS.

Frequently Asked Questions

What is Section 63 BNS?

Section 63 of the Bharatiya Nyaya Sanhita, 2023 (formerly Section 375 IPC), defines rape. It lists seven kinds of sexual penetration (peno-vaginal, oral, anal, digital, object, etc.) and seven circumstances in which consent is negated (against her will, without consent, under fear, misconception, unsoundness of mind or intoxication, under eighteen years, and inability to communicate consent). The section contains two exceptions: medical procedures, and sexual intercourse by a husband with his wife not below eighteen.

What is the punishment for rape under Section 64 BNS?

Section 64(1) BNS provides for rigorous imprisonment of not less than ten years, extending to imprisonment for life, and fine. Section 64(2) enhances the punishment for fourteen aggravated cases (rape by police officer, public servant, custodian, teacher, rape during communal violence, rape of pregnant woman, etc.) to a minimum of ten years extending to life meaning the remainder of natural life.

What is Section 65 BNS?

Section 65 BNS punishes rape of a minor. Section 65(1) applies to rape of a woman under sixteen: rigorous imprisonment for not less than twenty years, extending to life meaning natural life. Section 65(2) applies to rape of a woman under twelve: rigorous imprisonment for not less than twenty years, extending to life meaning natural life, or death, and fine. The death penalty for rape of a woman under twelve was introduced by the 2018 amendment following the Kathua case.

What is Section 69 BNS?

Section 69 BNS is a new provision introduced by the BNS. It punishes sexual intercourse obtained by deceitful means or by false promise of marriage. The Explanation includes false promise of employment, false promise of promotion, and marrying by suppressing identity. Punishment: up to ten years and fine. The section codifies what had previously been prosecuted under Section 375 IPC on the misconception of fact theory (Deelip Singh v State of Bihar, 2005).

What is the marital rape exception?

Exception 2 to Section 63 BNS provides that sexual intercourse by a man with his own wife not below eighteen years of age is not rape. The exception is one of the most contested provisions in Indian criminal law. In Independent Thought v Union of India (2017) 10 SCC 800, the Supreme Court read the age up to eighteen. The broader question of whether the exception should be struck down is currently before the Supreme Court.

What is Section 70 BNS?

Section 70 BNS (formerly Section 376D IPC) punishes gang rape. Every member of the group is deemed to have committed rape. Punishment: rigorous imprisonment for not less than twenty years, extending to life meaning natural life, and fine. Section 70(2) provides even more severe punishment for gang rape of a minor: life imprisonment meaning natural life (under sixteen), and life or death (under twelve).

Rape Section 63 BNS