BACK TO SECTIONS(2017) 6 SCC 1(1996) 2 SCC 384
Non-BailableCognizable: CognizableCourt of Session
Reform Highlights
1
Renumbered from IPC 375 to BNS 63.
2
Expanded post-Nirbhaya definition — oral, object, manipulation — preserved.
3
Marital rape exception (wife above 18) continues; constitutionality pending before Supreme Court.
4
Minimum sentence of 10 years RI for standard rape; 20 years to life for aggravated forms.
THE STATUTE
The Clause
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; (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; (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person.
Legal Commentary
Section 63 is the foundational rape provision of the BNS, carrying over and expanding the post-Nirbhaya reforms enshrined in the Criminal Law Amendment Act 2013. The section adopts a penetration-based, gender-specific definition focused on acts committed by a man against a woman. The definition is deliberately wide, encompassing penile penetration of multiple orifices, penetration by objects or body parts, manipulation of a woman's body to cause penetration, and oral sex — a direct response to the narrow vaginal penetration definition that applied before 2013, which left many forms of sexual violence outside the definition of rape. The 'without consent' element is critical: consent must be free, voluntary, and informed — given without fear, fraud, or intoxication. Importantly, the marital rape exception continues: sexual intercourse by a man with his own wife (not below 18) is not rape, a provision that remains deeply controversial and the subject of ongoing constitutional challenge before the Supreme Court. Aggravated rape (Section 64) — involving police officers, public servants, armed forces, gang rape, or rape of minors — attracts mandatory minimum sentences of 10 years, extendable to life.
Landmark Precedents
Mukesh & Anr v. State for NCT of Delhi (Nirbhaya) (2017)
RELEVANCE
Supreme Court upheld death sentences in the 2012 Delhi gang rape case, applying the 'rarest of rare' doctrine and discussing the expanded definition of rape post-2013.
State of Punjab v. Gurmit Singh (1996)
RELEVANCE
Held that the victim's testimony, if credible, is sufficient for conviction without corroboration — rejecting the discredited rule requiring corroboration in rape cases.
Case Simulations
"A woman administered a sedative who is then sexually assaulted — rape under BNS 63; consent vitiated by intoxication."
"A man who penetrates a woman with an object against her will — rape under clause (b) of BNS 63."
"A husband forcing sex on a wife above 18 — not criminal rape under current BNS 63 (marital exception applies), though a constitutional challenge is pending."
"A man who deceives a woman into sexual intercourse by falsely promising marriage — may constitute an offence under BNS 69."
Expert Insights
No. The exception for sexual intercourse by a man with his wife (if above 18) is preserved in BNS 63, meaning it is not criminal rape. This exception is being challenged before the Supreme Court as unconstitutional. If the wife is below 18, the act is rape regardless of marriage.
Yes. The Supreme Court in Lillu @ Rajesh v. State of Haryana (2013) held the two-finger test violates the victim's right to privacy and dignity. Medical protocols now prohibit it, and evidence derived from it is inadmissible.
No. The provision is gender-specific — only a man can commit rape under BNS 63. Women may however be liable for abetment of rape under BNS 45/46.