Consent, Rape and Indian Law (IPC 375 to BNS 2023)

1. Where does the law define rape?

BNS section 63 defines rape. It sits in Chapter V, titled “Of offences against woman and child”. The section replaced IPC section 375 and largely repeats it.

It lists the acts that can be rape. Then it names seven descriptions of circumstances. The first two are “against her will” and “without her consent”.

Section 63 speaks of a man and a woman. So it is not gender-neutral.

Sources: BNS Gazette text, 1; Act No. 45 of 2023 and BNS commencement.

2. What is consent under the BNS?

Answer first: consent is “an unequivocal voluntary agreement”. This is in Explanation 2 to section 63.

“Unequivocal” means clear, with only one possible meaning. “Voluntary” means freely chosen. The woman shows her willingness by words, gestures or any other verbal or non-verbal communication. The willingness must be for “the specific sexual act”.

Think of lending your bike. Saying yes to one ride does not mean yes to every ride. Consent works the same way. It is tied to one act.

Sources: BNS Gazette text, 2; Taxmann: BNS section 63.

3. Is silence consent?

No. The text does not use the words “silence is not consent”. That is a plain-language gloss on the law.

The proviso says that not physically resisting is not, by that fact alone, consent. The law asks for communicated willingness. Silence or a lack of resistance is not enough.

Common mistake: thinking the woman must fight back to show she did not agree. The law does not say that.

Sources: BNS Gazette text, 3.

4. What is outside the definition?

Exception 1 says a medical procedure or intervention is not rape. Explanation 1 says the word “vagina” includes the labia majora.

Sources: BNS Gazette text, 4.

5. Which situations make consent invalid?

Section 63 lists situations where a “yes” does not count as consent. Each one removes free choice.

• Fear: consent got by putting her, or someone she cares about, in fear of death or hurt.
• Impersonation: she agrees believing the man is her lawful husband, and he knows he is not.
• Unsound mind or intoxication: she cannot understand the nature and result of the act. This includes a stupefying or unwholesome substance given by him or through another.
• Age: she is under eighteen, with or without consent.
• Unable to communicate: she cannot communicate consent.

Sources: BNS Gazette text, 5; Taxmann: BNS section 63.

6. Where is “misconception of fact”?

Many students think this phrase is in section 63. It is not. It appears in BNS section 28(a).

Section 28 is the general rule on consent. It matches old IPC section 90. It says consent given under fear of injury or misconception of fact is not valid consent. “Misconception of fact” means a wrong belief about an important fact.

Sources: BNS Gazette text, 6; Latestlaws: BNS bare act.

7. What is the age of consent?

Answer first: it is 18. Under section 63, sex with a girl under eighteen is rape, whether or not she agrees.

POCSO defines a child as anyone below eighteen (section 2(1)(d)). POCSO covers boys and girls. BNS section 63 names only a woman as the victim.

Sources: BNS Gazette text, 7; POCSO definitions.

8. What did the Law Commission say?

The Law Commission of India submitted its 283rd report on 27 September 2023. It rejected lowering the age of consent from 18 to 16. It warned that this could weaken protection against child marriage and trafficking.

It also rejected a limited exception for ages 16 to 18. It said “the consent of a child is no consent”.

Instead, it proposed that courts get discretion in sentencing “tacit approval” cases. The conditions include an age gap of no more than three years and no coercion, fraud or trafficking. These are recommendations. They do not bind the Government.

Sources: The Leaflet; Tribune.

9. What does section 69 punish?

Section 69 punishes sex by deceitful means, or by a promise to marry made without any intention of keeping it. It applies where the act does not amount to rape.

The punishment is imprisonment of up to ten years, plus fine. “Deceitful means” includes a false promise of a job or promotion. It also includes marrying after hiding one’s identity.

Sources: BNS Gazette text, 9; Nyaaya: punishment for rape.

10. What did Pramod Suryabhan Pawar decide?

The Supreme Court decided this case on 21 August 2019. The bench was Justices D.Y. Chandrachud and Indira Banerjee. It is reported at (2019) 9 SCC 608.

The Court separated a breach of a promise from a false promise. A promise is false if given “in bad faith and with no intention of being adhered to at the time it was given”.

A later refusal to marry does not, by itself, show the promise was false at the start. Think of a couple who plan to marry, then part because families disagree. The promise was real when made. That is a broken promise, not a false one.

Sonu @ Subhash Kumar v State of UP (1 March 2021) repeated this. It added that a false promise must have a “direct nexus” with the woman’s decision.

Note: Pawar was decided under IPC 375. The Court did not interpret BNS section 69.

Sources: SCC Online; Sonu v State of UP.

11. What are the punishments in Chapter V?

Answer first: the basic punishment is rigorous imprisonment of ten years to life, plus fine (section 64(1)). “Rigorous” means with hard labour. In some sections, “life” means the rest of the convict’s natural life.

In sections 65(1) and 65(2), the fine must be just and reasonable. It covers medical and rehabilitation costs and is paid to the victim.

Sources: BNS Gazette text, 11; Vidhi Judicial: BNS Chapter V.

12. What do sections 67, 68 and 72 add?

Section 67 covers a man who has sex with his own wife, living separately, without her consent. The wording is “whether under a decree of separation or otherwise”. A decree of separation is a court order allowing spouses to live apart.

Section 68 covers a person in authority, a public servant, or jail or hospital staff who abuses that position.

Section 72 protects privacy. Printing or publishing a victim’s name or identity is punishable. Exceptions include a police order for investigation, the victim’s written authorisation, or the next of kin of a dead, child or unsound-minded victim.

Sources: BNS Gazette text, 12.

13. What is the exception?

Exception 2 to section 63 covers sex by a man with his own wife. It says that, “the wife not being under eighteen years of age”, this is not rape.

In Independent Thought v Union of India (11 October 2017), Justices Madan B. Lokur and Deepak Gupta held the exception does not apply where the wife is below eighteen. Before that, the IPC exception covered wives not under fifteen.

The question before the Court was limited to wives aged 15 to 18. So the ruling left the exception in place for wives aged 18 and over.

Section 67 is the only offence in sections 63 to 72 for a husband’s non-consensual act with an adult wife. It applies only where the wife lives separately. Other laws, such as those on hurt or cruelty, may apply to conduct in general.

Sources: CLPR on Independent Thought; SC Observer; BNS Gazette text, 13.

14. What did the Verma Committee say?

The Justice Verma Committee reported on 23 January 2013. Its members were Justice J.S. Verma, Justice Leila Seth and Gopal Subramanium. It recommended removing the marital exception. It said: “Marriage should not be considered as an irrevocable consent to sexual acts.”

Our Verma Committee article covers this report in full.

Sources: PRS India: Verma Committee summary.

15. Is the question still open?

Yes. The challenge to the exception is pending in the Supreme Court. On 9 September 2026, a bench led by Chief Justice Surya Kant said it would list the cases for final hearing. The bench also included Justices Joymalya Bagchi and V Mohana. It said it would examine the exception’s constitutional validity.

The final hearing was listed from about October 2026. As of 31 October 2026, no judgment had been found. Any outcome would be known only when the Court decides.

Sources: Tribune India; Bar and Bench.

16. What changed from 1979 to 2013?

In the Mathura case, the Supreme Court in Tukaram v State of Maharashtra (15 September 1979) acquitted two policemen. The incident took place in 1972.

The Criminal Law (Amendment) Act, 1983 (Act 43 of 1983) followed. It added section 114A to the Evidence Act. In listed cases, if she says she did not consent, the court presumes there was no consent. It also added IPC sections 376A to 376D, including custodial rape.

After the Verma report, the Criminal Law (Amendment) Bill 2013 passed the Lok Sabha on 19 March and the Rajya Sabha on 21 March 2013. The Act amended the IPC, the Code of Criminal Procedure, the Evidence Act and POCSO.

Sources: Mathura rape case; PRS India: 2013 Bill.

17. What changed in 2018 and 2023?

An Ordinance was issued on 21 April 2018. The Bill passed the Lok Sabha on 30 July and the Rajya Sabha on 6 August 2018. It raised the minimum for rape of an adult woman from seven to ten years. For a victim under twelve, the minimum became twenty years. For under sixteen, it rose from ten to twenty years. Anticipatory bail was barred for rape of girls under sixteen.

The BNS is Act No. 45 of 2023, assented on 25 December 2023. Its sexual offences are in sections 63 to 73. Our article on the new criminal laws explains the wider change.

Sources: PRS India: 2018 Bill; BNS Gazette text, 17.

18. What happened to the two-finger test?

The “two-finger test” was a medical examination of rape survivors. It has no scientific basis. In Lillu v State of Haryana (April 2013), the Supreme Court held it violates privacy, physical and mental integrity and dignity.

In State of Jharkhand v Shailendra Kumar Rai (31 October 2022), Justices D.Y. Chandrachud and Hima Kohli said the test must not be conducted. They called the idea that a sexually active woman cannot be raped “patriarchal and sexist”. Anyone conducting the test is guilty of misconduct. Medical curricula must be reviewed.

Sources: Bar and Bench on Lillu; SCC Online on Shailendra Kumar Rai.