Rape: What the Sanhita Makes It
Chapter Thirteen
Syllabus topic 1, "Offences under Indian Penal Code"
Pages 56 to 60 of 802
In one line
Rape is penetration of a woman's body by a man in any of four described ways, in any of seven described circumstances, and the circumstances are where the law does its work.
In the wording a student can write in an exam: by section 63 of the Bharatiya Nyaya Sanhita, 2023 a man commits rape if he does any of the four acts in clauses (a) to (d) under any of the seven descriptions in sub-clauses (i) to (vii), which include against her will, without her consent, with a consent obtained by fear of death or hurt, and with or without consent where she is under eighteen years of age.
Why the definition is built this way
A definition of rape has to answer two separate questions. What was done, and in what circumstances. The Penal Code before 2013 answered the first narrowly, limiting the offence to one act, and the answer left a great deal of grave sexual violence outside the offence.
The Sanhita carries forward the wider definition introduced into the Penal Code by the criminal law amendment of 2013, which followed the Verma Committee. It describes four acts, not one, and it treats the woman being made to do the act with the man or with another person as within the offence.
The seven descriptions do the moral work. They are the circumstances that make the act criminal, and they range from plain force to a consent that the law will not recognise because of age or incapacity.
The provision itself
Section 63 opens with the four acts. A man commits rape if he (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 any other person; (b) inserts, to any extent, any object or a part of the body other than the penis into the vagina, urethra or anus of a woman, or makes her do so; (c) manipulates any part of a woman's body so as to cause penetration into her vagina, urethra, anus or any part of her body, or makes her do so; or (d) applies his mouth to the vagina, anus or urethra of a woman, or makes her do so.
The seven descriptions. (i) against her will; (ii) without her consent; (iii) with her consent, obtained by putting her or any person in whom she is interested in fear of death or of hurt; (iv) with her consent, where the man knows he is not her husband and her consent is given because she believes he is another man to whom she is or believes herself lawfully married; (v) with her consent where, at the time of giving it, by reason of unsoundness of mind or intoxication or the administration by him of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of what she consents to; (vi) with or without her consent, when she is under eighteen years of age; (vii) when she is unable to communicate consent.
Rape: What the Sanhita Makes It
Explanation 1 provides that "vagina" also includes labia majora.
Explanation 2, consent. "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", with a proviso that a woman who does not physically resist the act of penetration shall not by reason only of that fact be regarded as consenting.
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."
Section 64(1), the ordinary punishment. Rigorous imprisonment for not less than ten years, which may extend to imprisonment for life, and fine.
Section 64(2), the aggravated punishment, which is rigorous imprisonment for not less than ten years extending to imprisonment for the remainder of natural life, applies where the offender falls within a listed class. The classes include a police officer offending within his police station's limits, in a station house, or on a woman in his or a subordinate's custody; a public servant offending on a woman in his or a subordinate's custody; a member of the armed forces deployed in an area, offending in that area; a person on the management or staff of a jail, remand home, place of custody or a women's or children's institution, offending on an inmate; a person on the management or staff of a hospital, offending on a woman in it; and a relative, guardian or teacher, or a person in a position of trust or authority towards the woman.
Broken down: "against her will" and "without her consent"
These are two descriptions, not one, and the difference is examinable. Every act against a woman's will is also without her consent, but not every act without her consent is against her will.
"Against her will" imports active opposition. The woman knew what was proposed and resisted it, by word or by act.
"Without her consent" is wider. It covers the woman who was asleep, unconscious, or so placed that she gave no agreement at all. There is nothing for her to oppose, so the first description would not fit, and the second does.
Explanation 2 changes how consent is proved. It requires an unequivocal voluntary agreement communicated by words, gestures or any form of communication, to the specific sexual act. Silence is not consent, and the proviso puts beyond argument that absence of physical resistance is not consent either.
Rape: What the Sanhita Makes It
The age line, and Independent Thought
Description (vi) makes consent irrelevant below eighteen. A girl under eighteen cannot consent to sexual intercourse for the purposes of this section, and the man's belief about her age is not a defence on the face of the provision.
Exception 2 used to contradict that. Under the Penal Code, the exception to section 375 excluded from rape sexual intercourse by a man with his own wife where the wife was not under fifteen years of age. So a girl of sixteen could not consent, but if she was married her husband was outside the offence.
Facts. Independent Thought v. Union of India, (2017) 10 SCC 800. A registered society working on child rights brought a petition challenging that exception so far as it applied to a married girl between fifteen and eighteen years of age.
Held. The exception, in so far as it exempted sexual intercourse with a wife between fifteen and eighteen, could not stand, and it was read down so that the wife must be at least eighteen.
Why it matters here. The Sanhita has written that result into the statute. Exception 2 to section 63 now says "the wife not being under eighteen years of age", so the age in the exception and the age in description (vi) finally agree. What the decision could not do, and what the Sanhita did not do either, is remove the marital exception itself. The Verma Committee recommended its removal in 2013 and it was not removed.
Distinctions that carry marks
| Against her will, (i) | Without her consent, (ii) | |
|---|---|---|
| What it needs | Active opposition by the woman | Absence of an agreement, opposition or not |
| Typical case | She resists and is overpowered | She is asleep, unconscious or incapable |
| Relationship | Every case within (i) is also within (ii) | Wider than (i) |
| Section 63 with description (v) | Section 69 | |
|---|---|---|
| The vitiating factor | Incapacity from unsoundness of mind, intoxication or a stupefying substance | Deceit, including a false promise of marriage |
| Effect on consent | No valid consent at all, so it is rape | Consent exists but was obtained by deceit, so it is a separate lesser offence |
| Punishment | Section 64 | Up to ten years and fine |
A worked example
Rekha, aged nineteen, attends a party where a man she has just met adds a sedative to her drink without her knowledge. She becomes semi-conscious and he has intercourse with her.
Which description applies? Description (v). At the time of any apparent consent she was unable to understand the nature and consequences of what she was consenting to, by reason of a stupefying substance administered by him. Description (ii) applies as well, because there was no agreement at all.
Rape: What the Sanhita Makes It
Would her failure to resist matter? No. The proviso to Explanation 2 says a woman who does not physically resist penetration is not, by reason only of that fact, to be regarded as consenting.
Change her age to seventeen. Description (vi) then applies whether or not there was any drug and whether or not she agreed, because a woman under eighteen cannot consent for the purposes of section 63.
Change the offender. Suppose the man is the warden of the hostel where she lives. Section 64(2)(f) applies, because he is a person in a position of trust or authority towards her, and the minimum sentence becomes rigorous imprisonment for ten years extending to imprisonment for the remainder of his natural life.
What beginners get wrong
Thinking rape requires proof of physical injury. It does not. Injury is evidence, sometimes powerful, but no description in section 63 requires it, and Explanation 2 makes absence of resistance irrelevant.
Thinking a promise of marriage makes intercourse rape. Section 69 was created precisely because it does not fall neatly within section 63. Where consent was given, though obtained by a false promise of marriage, section 69 provides a separate offence with a lower maximum.
Thinking the offence is gender-neutral. It is not. Section 63 opens "A man is said to commit rape", and the victim throughout is "a woman". A man cannot be the victim of this offence in Indian law.
Reading Exception 1 as a general medical defence. It exempts a medical procedure or intervention, not any act by a doctor.
Limits and criticism
The marital exception survives. Exception 2 removes from the definition sexual acts by a man with his wife aged eighteen or above, whatever the circumstances. India is among the shrinking number of jurisdictions retaining such an exception, and the Sanhita, having raised the age, left the principle untouched.
The offence remains one-directional. The Verma Committee proposed a gender-neutral offence of sexual assault; the amendment of 2013 did not adopt it and neither did the Sanhita, so a male or transgender victim of the same acts is left to other provisions.
Section 67 sits awkwardly beside the exception. A husband who has intercourse with a wife living separately without her consent commits an offence carrying two to seven years, whereas the same act against a wife not living separately is not an offence at all. The separation, rather than the absence of consent, is doing the work.
Quick revision
Section 63. Four acts, clauses (a) to (d), in any of seven circumstances, sub-clauses (i) to (vii).
Rape: What the Sanhita Makes It
The seven descriptions. Against her will; without her consent; consent by fear of death or hurt; consent obtained by impersonating her husband; consent while incapable through unsoundness of mind, intoxication or a substance he administered; under eighteen, with or without consent; unable to communicate consent.
Explanation 2. Consent is an unequivocal voluntary agreement communicated to the specific act, and non-resistance is not consent.
Exception 1. Medical procedures. Exception 2. A man and his wife aged eighteen or above.
Independent Thought, (2017) 10 SCC 800. Read down the old exception so far as it covered a wife between fifteen and eighteen. The Sanhita has enacted that result.
Section 64(1). Not less than ten years, extending to imprisonment for life, and fine.
Section 64(2). The aggravated classes, including police officers, public servants, armed forces in a deployed area, custodial and hospital staff, and relatives, guardians, teachers and persons in a position of trust or authority.
Test yourself
1. How many acts and how many circumstances does section 63 describe? Four acts, in clauses (a) to (d), and seven circumstances, in sub-clauses (i) to (vii).
2. Distinguish "against her will" from "without her consent". The first requires active opposition by the woman; the second requires only the absence of an agreement, and so covers a woman who was asleep, unconscious or otherwise incapable of giving one. Every case within the first is also within the second.
3. What did Independent Thought v. Union of India decide, and what does the Sanhita now say? It held that the exception to section 375 of the Penal Code could not stand so far as it exempted sexual intercourse with a wife between fifteen and eighteen, and read it down accordingly. Exception 2 to section 63 now says the wife must not be under eighteen years of age.
4. Does a woman's failure to resist amount to consent? No. The proviso to Explanation 2 to section 63 says that a woman who does not physically resist the act of penetration shall not, by reason only of that fact, be regarded as consenting.
5. Name three classes of offender to whom the aggravated punishment in section 64(2) applies. Any three of: a police officer offending within his police station's limits, in a station house or on a woman in custody; a public servant offending on a woman in custody; a member of the armed forces deployed in an area, offending there; staff of a jail, remand home or women's or children's institution offending on an inmate; hospital staff offending on a woman in the hospital; and a relative, guardian, teacher or person in a position of trust or authority.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.