Section 63 of the Bharatiya Nyaya Sanhita, 2023 (BNS) contains the definition of rape. It replaced Section 375 of the Indian Penal Code when the BNS came into force on 1 July 2024, carrying the substance of the old definition forward with one significant change: the age in the marital exception was raised from fifteen to eighteen years.
This is a definition section - it states what amounts to rape. The punishment is prescribed separately in Section 64 BNS.
What Section 63 BNS provides
A man is said to commit rape if he does any of the physical acts described in clauses (a) to (d) of the section - penetration, insertion of any object or body part, manipulation of the body to cause penetration, or the application of the mouth - with a woman, in any of seven circumstances:
- against her will;
- without her consent;
- with her consent, when the consent is obtained by putting her, or any person she is interested in, in fear of death or hurt;
- with her consent, when she gives it believing the man is her husband when he is not;
- with her consent, when she cannot understand the nature and consequences of what she consents to because of unsoundness of mind or intoxication;
- with or without her consent, when she is under eighteen years of age; and
- when she is unable to communicate consent.
Consent under Section 63
The section defines consent as an unequivocal voluntary agreement, communicated by words, gestures or any form of verbal or non-verbal communication, showing a willingness to participate in the specific act. It also makes clear that a woman who does not physically resist is not, by that fact alone, to be regarded as consenting. Where the woman is below eighteen, consent is immaterial - the sixth circumstance applies whether or not she agreed.
The two exceptions
- Exception 1 - a medical procedure or intervention does 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 exception, and the age threshold is where the BNS departs from the IPC.
What changed from Section 375 IPC
The definition itself is substantially the old Section 375 IPC, renumbered. The change lies in Exception 2: the IPC text said the wife must not be under fifteen years; the BNS raises that to eighteen years, aligning the exception with the general age of consent. This codifies the position the Supreme Court had already reached in Independent Thought v. Union of India (2017), which read the fifteen-year threshold up to eighteen, holding that sexual intercourse with a wife below eighteen is rape. The provision remains gender-specific - the offence is defined as committed by a man against a woman - and sexual acts by a husband with a wife aged eighteen or above remain outside the definition.
Leading Supreme Court judgment
- Independent Thought v. Union of India (2017) - held the fifteen-year marital-exception age unconstitutional as regards wives between fifteen and eighteen, reading it up to eighteen. The BNS adopts that position in the statutory text.
These are among the most serious and sensitive cases in criminal law, for the survivor and the accused alike. Early, competent representation shapes everything that follows. Talk to a criminal lawyer in your city or browse advocates in the Free Law directory.