Sexual Offences — Rape & Unnatural Offences (BNS) — Criminal Law I Notes

Rape and other sexual offences

Previous Year Questions

[16M] Define rape. Discuss its ingredients, consent, and recent developments. (2016, 2017, 2018, 2019, 2021, 2025, 2026) ⭐⭐⭐

[Problem] “Z had intercourse with Y, a girl below 18, with her consent…” — offence? (2012, 2013, 2019, 2023)

After the Nirbhaya gang-rape of December 2012 shook the country, Parliament rewrote the law of rape (the Criminal Law Amendment Act, 2013). The BNS of 2023 carried those reforms forward into ss.63–73, widening the definition, hardening the punishments, and — for the first time — creating the death penalty for the rape of a child. This is the most heavily reformed area of the whole code.

Definition — s.63, BNS [old s.375 IPC]. A man is said to commit rape if he has sexual intercourse with a woman in any of the described circumstances — most importantly, against her will, without her consent, with a consent obtained by putting her in fear or by fraud, or where she is under 18 (consent then being irrelevant). The section defines “sexual intercourse” broadly (penetration of the specified kinds).

Consent — the heart of the offence. Consent (Explanation 2 to s.63) means an unequivocal voluntary agreement, communicated by words, gestures or conduct. Crucial points:

A woman who does not physically resist is not thereby deemed to consent.
Consent given under fear, misconception of fact, unsoundness of mind, or intoxication is no consent (s.28 principles).
For a girl under 18, consent is irrelevant — intercourse with her is rape whatever she says (statutory rape).

The marital-rape exception. Exception 2 to s.63 provides that sexual intercourse by a man with his own wife, the wife not being under eighteen years, is not rape. This continues the controversial marital-rape immunity; the exception was earlier read to raise the age to 18 (Independent Thought v Union of India, 2017), and the constitutional challenge to marital-rape immunity remains a live question.

Punishment and aggravated forms (ss.64–70). Rigorous imprisonment of not less than ten years, extendable to life; higher minimums for aggravated rape (by a police officer, public servant, in custody, of a pregnant woman, etc., s.64(2)); gang rape (s.70); rape of a woman under 16 (s.65(1)) / under 12 (s.65(2)) carries enhanced minimums up to the death penalty; and s.66 punishes rape causing death or a persistent vegetative state with a minimum of twenty years up to death.

🧩 Worked example. Z has sexual intercourse with Y, an unmarried girl of 17, with her apparent consent. Because Y is under 18, her consent is legally irrelevant — the intercourse is rape under s.63, and Z cannot plead that she agreed. Contrast: if Y were 20 and gave free, informed consent, no offence is committed. One fact — her age — flips the case entirely.

s.63, Explanation 2, BNS: “‘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: Provided that a woman who does not physically resist… shall not by the reason only of that fact, be regarded as consenting.”

In Simple Terms: consent must be a real, freely-given “yes” — silence, submission out of fear, or the mere absence of a fight is not consent. And a girl under 18 cannot give a consent the law will recognise at all.

flowchart TD
    R["RAPE s.63"] --> C1["Against her will / without consent"]
    R --> C2["Consent by fear or fraud = no consent"]
    R --> C3["Under 18 — consent IRRELEVANT"]
    R --> EX["Exception 2: wife not under 18 — not rape (marital immunity)"]
    R --> AGG["Aggravated: custodial, gang (s.70), under-16/12 → up to DEATH"]

Case Laws

Tuka Ram v State of Maharashtra (Mathura case) (1979) — the custodial-rape acquittal that triggered the 1983 reforms on consent and burden of proof.
State of Punjab v Gurmit Singh (1996) — a rape victim’s testimony needs no corroboration if it inspires confidence; delay in FIR is not fatal.
Independent Thought v Union of India (2017) — read down the marital-rape exception so that intercourse with a wife under 18 is rape.

Sexual intercourse by deceitful means

Previous Year Questions

(A new BNS offence (s.69), not yet in the extracted corpus — a prime fresh-topic candidate; cover it.) 🆕

A new offence — s.69, BNS. The Sanhita creates a wholly new offence: whoever, by deceitful means or by making a promise to marry a woman without any intention of fulfilling it, has sexual intercourse with her (not amounting to rape), is punished with imprisonment up to ten years and fine. “Deceitful means” is defined to include the false promise of employment or promotion, inducement, or marrying by suppressing identity.

Why it was created. Before the BNS, courts had to strain the definition of rape to cover cases where a man obtained sex on a false promise of marriage — treating the woman’s consent as vitiated by a “misconception of fact.” That produced years of uncertain, over-stretched rape prosecutions. s.69 gives these cases their own home: it is a distinct, lesser offence than rape, aimed squarely at sexual exploitation obtained by deceit.

The key distinction — false promise v breach of promise. The offence needs a promise false from the start (no intention to marry when it was made). A genuine promise later broken because the relationship soured is not an offence — the law punishes the deceit, not the change of heart. This mirrors what the Supreme Court had held in the rape context (Pramod Suryabhan Pawar v State of Maharashtra, 2019).

🧩 Worked example. A tells B, whom he has no intention of ever marrying, that he will marry her, and on that false promise obtains sexual intercourse. This is now an offence under s.69 — the promise was false when made, and the deceit procured the act. But if A genuinely intended to marry B, they had a relationship, and A later broke off the engagement, no s.69 offence arises — a broken genuine promise is not deceit.

s.69, BNS: “Whoever, by deceitful means or by making promise to marry to a woman without any intention of fulfilling the same, has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment… which may extend to ten years and shall also be liable to fine.”

In Simple Terms: if a man tricks a woman into sex by a lie — a marriage promise he never meant, a fake identity, a false job offer — that is now its own crime, separate from rape. But an honest promise later broken is not caught.

flowchart TD
    S69["s.69 — DECEITFUL INTERCOURSE (new)"] --> D1["Deceitful means (false job/identity)"]
    S69 --> D2["False promise to marry — FALSE FROM THE START"]
    S69 --> N["NOT rape; up to 10 years"]
    D2 --> Q{"Promise false when made?"}
    Q -->|yes| OFF["Offence"]
    Q -->|"genuine promise later broken"| NO["No offence"]

Case Laws

Pramod Suryabhan Pawar v State of Maharashtra (2019) — distinguished a false promise (offence) from a mere breach of a genuine promise (no offence); the reasoning s.69 now codifies.

Unnatural offences

Previous Year Questions

[5M] Unnatural offences. (2011) ⭐ (IPC-era only — read down; not re-enacted)

⚠️ Legal history — answer it as such. “Unnatural offences” was old s.377 IPC: it punished “carnal intercourse against the order of nature”, and had been used to criminalise consensual same-sex relations.

Read down — Navtej Singh Johar v Union of India (2018). A five-judge Constitution Bench read down s.377 to decriminalise consensual sexual acts between adults, holding that criminalising them violated:

Article 14 (equality),
Article 15 (non-discrimination, including on sexual orientation),
Article 19 (expression), and
Article 21 (dignity, privacy and autonomy — following K.S. Puttaswamy).

s.377 was left standing only for non-consensual acts and acts involving animals (bestiality) and minors.

Not re-enacted in the BNS. The Bharatiya Nyaya Sanhita, 2023 did not carry forward a general “unnatural offences” provision. Non-consensual sexual acts and acts against children are now dealt with through the general sexual-offence provisions and POCSO. So the old s.377, as an offence criminalising consensual conduct, is gone.

🧩 Worked example. If asked “Discuss unnatural offences under the IPC,” the correct modern answer states old s.377, explains that it was read down in Navtej Singh Johar (2018) to decriminalise consensual adult conduct as violating Articles 14, 15, 19 and 21, and notes that the BNS did not re-enact it. Non-consensual acts are now punished under the general provisions.

Navtej Singh Johar v Union of India (2018): “Section 377, insofar as it criminalises consensual sexual conduct between adults… is unconstitutional.”

In Simple Terms: the old law that made consensual same-sex relations a crime was struck down in 2018 as a violation of dignity and equality, and the BNS did not bring it back. Only non-consensual acts and abuse of children remain punishable, under the general law.

flowchart TD
    UO["UNNATURAL OFFENCES (old s.377)"] --> RD["Read down: Navtej Johar 2018 (Arts. 14,15,19,21)"]
    RD --> C["Consensual adult acts — DECRIMINALISED"]
    RD --> NC["Non-consensual / minors / bestiality — still punishable"]
    UO --> NR["NOT re-enacted in BNS — general provisions & POCSO apply"]

Case Laws

Navtej Singh Johar v Union of India (2018) — read down s.377; consensual same-sex relations decriminalised.
K.S. Puttaswamy v Union of India (2017) — the privacy foundation on which Navtej rested.

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