Bharatiya Nyaya Sanhita, 2023
Section 63
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 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.
Why this exists
This provision (essentially carried over from Section 375 of the old Indian Penal Code) reflects decades of reform driven by feminist legal advocacy and the 2012 Delhi gang-rape case. The Justice J.S. Verma Committee, formed after that case, recommended broadening the definition of rape beyond just penile-vaginal penetration to include oral, anal, and object-based penetration, and clarifying that consent must be affirmative, not merely the absence of resistance. These recommendations became law via the Criminal Law (Amendment) Act, 2013, and were carried forward largely unchanged into the Bharatiya Nyaya Sanhita, 2023, which replaced the IPC.
How courts read it
Courts have shaped this provision significantly. In Independent Thought v. Union of India (2017), the Supreme Court held that having sex with one's wife if she is under 18 amounts to rape, effectively narrowing the old marital exception for child brides — a ruling the BNS text now reflects directly in Exception 2. Courts have also repeatedly stressed, including in cases interpreting the 2013 amendment's consent definition, that silence or lack of physical resistance is not consent (as Explanation 2's proviso makes explicit). The broader marital rape exception for adult wives remains legally contested — the Delhi High Court gave a split verdict in RIT Foundation v. Union of India (2022) on whether it violates constitutional rights, and the question is currently pending before the Supreme Court.
Common misconceptions
- Myth: If a woman didn't physically fight back or scream, it means she consented.
Fact: The law explicitly states that not physically resisting does not, by itself, mean she consented (Explanation 2's proviso). - Myth: Rape only means penile-vaginal intercourse.
Fact: The law defines rape broadly to include oral, anal, and object/body-part penetration, not just penile-vaginal intercourse. - Myth: A husband can never be guilty of rape under this law, no matter his wife's age.
Fact: Exception 2 protects a husband only if his wife is 18 or older; sex with a wife under 18 is rape, per the Supreme Court's Independent Thought ruling now built into the text. - Myth: If she initially said yes, it always counts as consent.
Fact: Consent must be for that specific act and given freely with real understanding; consent obtained through fear, deception about identity, intoxication, or from someone unable to understand the act does not count as valid consent.