Rape and sexual offences

1. Definition: section 63 (old s.375 IPC)

A man commits rape if he does any of four kinds of act:

• (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman, or makes her do so with him or another;
• (b) inserts any object or part of the body, other than the penis, into the vagina, urethra or anus of a woman;
• (c) manipulates any part of a woman's body so as to cause penetration;
• (d) applies his mouth to the vagina, anus or urethra of a woman,

under any of seven circumstances: (i) against her will; (ii) without her consent; (iii) with consent obtained by putting her or a person she is interested in in fear of death or hurt; (iv) with consent given because she believes he is another man to whom she is or believes herself lawfully married; (v) with consent given when, from unsoundness of mind, intoxication or a stupefying substance, she cannot understand its nature and consequences; (vi) with or without her consent when she is under eighteen; (vii) when she is unable to communicate consent.

The offence is gender-specific: the offender is a man and the victim a woman. The general gender-neutral definition in s.2(10) does not change that.

2. Consent

Explanation 2 defines consent as an unequivocal voluntary agreement by which the woman, by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act. The proviso adds that a woman who does not physically resist penetration shall not, by that fact alone, be regarded as consenting.

The proviso is the law's answer to Tuka Ram v. State of Maharashtra, 1978 INSC 178, (1979) 2 SCC 143, the Mathura case. Mathura, a young tribal girl, was raped by two policemen in a police station. The Supreme Court acquitted them, holding that there were no marks of injury, she had raised no alarm, and her consent could not be said to be vitiated by fear. Public protest led to the Criminal Law (Amendment) Act, 1983, which created custodial rape and a presumption of absence of consent. That presumption now sits in s.120 of the Bharatiya Sakshya Adhiniyam for aggravated rape under s.64(2): where intercourse is proved and the woman says she did not consent, the Court shall presume she did not.

The two Exceptions: a medical procedure or intervention is not rape (Exception 1); and sexual acts by a man with his own wife, the wife not being under eighteen, are not rape (Exception 2).

3. Punishment: sections 64 to 66

• Section 64(1): rigorous imprisonment of not less than ten years, extending to life, and fine.
• Section 64(2), aggravated rape: by a police officer within his station limits or on a woman in custody; by a public servant on a woman in his custody; by a member of the armed forces in an area of deployment; by jail, remand home or hospital staff on an inmate or patient; by a relative, guardian, teacher or person in a position of trust or authority; during communal or sectarian violence; on a pregnant woman; on a woman incapable of consent; by one in control or dominance; on a woman with a mental or physical disability; while causing grievous bodily harm or endangering life; or repeatedly. Not less than ten years, extending to life meaning the remainder of natural life.
• Section 65(1): rape of a woman under sixteen, not less than twenty years, extending to life for the remainder of natural life.
• Section 65(2): rape of a woman under twelve, not less than twenty years, extending to life for natural life, or death. Fines under s.65 go to the victim for medical expenses and rehabilitation.
• Section 66: rape causing death or a persistent vegetative state, not less than twenty years, life for natural life, or death.

Rape of a woman between sixteen and eighteen falls under s.64 (it is rape under s.63(vi) whatever her consent). The Protection of Children from Sexual Offences Act, 2012 also applies to any victim under eighteen.

4. Other forms

• Section 67 (old s.376B): sexual intercourse by a husband with his wife who is living separately, under a decree or otherwise, without her consent: two to seven years.
• Section 68 (old s.376C): intercourse not amounting to rape by a person in authority, a fiduciary, a public servant, or jail or hospital staff abusing that position: five to ten years.
• Section 69 (new): sexual intercourse, not amounting to rape, by deceitful means or by a promise to marry made without any intention of fulfilling it: up to ten years and fine. “Deceitful means” includes a false promise of employment or promotion, or marrying by suppressing identity.
• Section 70(1) (old s.376D): gang rape, where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention; each is deemed to have committed rape. Not less than twenty years, extending to life for natural life.
• Section 70(2) (old ss.376DA, 376DB): gang rape of a woman under eighteen: life for natural life, or death.
• Section 71 (old s.376E): repeat offenders under ss.64, 65, 66 or 70: life for natural life, or death.

Before s.69, cases of false promise to marry were tried as rape on the footing that consent obtained by a misconception of fact is no consent (s.90 IPC, now s.28 BNS). In Pramod Suryabhan Pawar v. State of Maharashtra, 2019 INSC 939, (2019) 9 SCC 608, the Court distinguished a false promise, given with no intention of keeping it from the start and bearing directly on the woman's decision, from a mere breach of a promise made in good faith. That distinction is now the line between s.69 and no offence.

5. Protecting the victim's identity: sections 72 and 73

Printing or publishing the name or any matter that may make known the identity of a victim of an offence under ss.64–71 is punishable with up to two years and fine (s.72(1), old s.228A). Exceptions: publication by order of the investigating officer in good faith for the investigation; by or with the written authority of the victim; or, where the victim is dead, a child or of unsound mind, with the written authority of the next of kin, given only to the chairman or secretary of a recognised welfare organisation (s.72(2)). Printing any matter relating to court proceedings in such a case without the Court's permission is also punishable (s.73), though publishing a judgment of a High Court or the Supreme Court is not. In State of Punjab v. Gurmit Singh, 1996 INSC 75, (1996) 2 SCC 384, the Court held that the testimony of a victim of sexual assault does not need corroboration if it inspires confidence, and directed trials in camera and avoidance of the victim's name in judgments.

6. The marital rape exception

Under the IPC, Exception 2 to s.375 protected intercourse by a man with his wife not under fifteen. In Independent Thought v. Union of India, 2017 INSC 1030, (2017) 10 SCC 800, the Supreme Court read the exception down: intercourse with a wife between fifteen and eighteen is rape. The age of fifteen was arbitrary, discriminated against married girls, and conflicted with the POCSO Act. The BNS writes this into the text: the exception applies only where the wife is not under eighteen.

For a wife of eighteen or more, the exception stands. A husband can be prosecuted only under s.67 (if they live apart), for cruelty under s.85, or for hurt. The constitutional validity of the exception was challenged before the Delhi High Court, which delivered a split verdict in 2022, and the challenge (now extending to the BNS exception) has been pending before the Supreme Court. Unless and until the Court decides, the exception is good law.

How this is examined

As an essay: “Define rape. Discuss the law relating to consent with case law”, or “Examine the changes made by the BNS in the law relating to sexual offences.” Short notes: gang rape, s.69, identity of victim, marital rape exception. Begin with the four acts and seven circumstances of s.63, use Mathura to explain the consent proviso, and close with Independent Thought and the present status of the marital exception.