IPC Section 375 - Rape: Definition, Consent and BNS Section 63

IPC Section 375 and BNS Section 63: Applicable law

The IPC was replaced for new offences by the BNS with effect from 1 July 2024, subject to applicable saving and transitional provisions. Earlier offences remain subject to the law applicable when they occurred. Section 375 IPC and Section 63 BNS define rape; punishment is separately addressed in IPC Section 376 and BNS Section 64 and other aggravated-offence provisions.

Read the Bharatiya Nyaya Sanhita, 2023 on India Code and the Indian Penal Code, 1860 on India Code for authoritative statutory texts.

Acts covered by the definition of rape

Under Section 375 IPC, a man commits rape if, in any of the seven specified circumstances, he performs any of the following acts:

1. Penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman, or makes her do so with him or another person.
2. Inserts, to any extent, an object or a body part other than the penis into the vagina, urethra or anus of a woman, or makes her do so with him or another person.
3. Manipulates any part of a woman's body so as to cause penetration into the vagina, urethra, anus or any part of her body, or makes her do so with him or another person.
4. Applies his mouth to the vagina, anus or urethra of a woman, or makes her do so with him or another person.

These are the four categories of conduct described in the statutory definition. The definition in Section 63 BNS substantially carries forward these categories.

Seven circumstances under Section 375 IPC

1. Against her will: the act takes place contrary to the woman's will.
2. Without her consent: there is no legally valid consent.
3. Consent obtained through fear: consent is obtained by placing her, or someone in whom she is interested, in fear of death or hurt.
4. Mistaken identity of husband: the man knows he is not her husband and she consents because she believes he is another man to whom she is, or believes herself to be, lawfully married.
5. Inability to understand: at the time of purported consent, unsoundness of mind, intoxication, or administration of a stupefying or unwholesome substance prevents her from understanding the nature and consequences of the act.
6. Age below eighteen: the woman is under eighteen years of age, with or without her consent.
7. Inability to communicate: she is unable to communicate consent.

Meaning of consent and statutory explanations

Explanation 1: For this provision, the term "vagina" includes the labia majora.

Explanation 2: Consent is an unequivocal voluntary agreement, communicated through words, gestures, or verbal or non-verbal communication, indicating willingness to participate in the specific sexual act. A woman's failure to physically resist penetration does not, by itself, establish consent.

Consent must be assessed in relation to the specific act and the circumstances. The age threshold of eighteen years operates independently of apparent consent.

Exceptions and the marital-rape legal position

Medical exception: A medical procedure or intervention does not constitute rape merely by reason of the acts described in the definition.

Marital exception: The printed text of IPC Section 375 Exception 2 referred to a wife not being under fifteen years of age. In Independent Thought v. Union of India (2017), the Supreme Court read that exception down so that it does not exclude sexual intercourse with a wife below eighteen years. Section 63 BNS states an exception for sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age. The treatment of non-consensual sexual acts within an adult marriage remains a distinct and contested legal issue; the statutory exception should not be described as eliminating other potentially applicable legal remedies.

Sexual intercourse by a husband with his wife during separation is separately addressed by Section 67 BNS (and formerly IPC Section 376B), where its statutory conditions are met.

Punishment and related offences

Section 375 IPC and Section 63 BNS primarily define the offence. Under Section 64(1) BNS, the general punishment for rape is rigorous imprisonment for not less than ten years, which may extend to imprisonment for life, and a fine. Different provisions prescribe penalties for specified aggravated circumstances, offences involving children, and other situations. The precise charge and punishment depend on the facts and the law applicable on the date of the offence.

For procedural rules, refer to the Bharatiya Nagarik Suraksha Sanhita, 2023 and for child sexual offences to the Protection of Children from Sexual Offences Act, 2012.

Frequently asked questions

Is IPC Section 375 still applicable?

It remains relevant to conduct occurring before 1 July 2024, subject to the applicable savings and legal proceedings. Section 63 BNS governs the corresponding definition for offences committed after the new law commenced.

Is consent of a person below eighteen legally sufficient?

No. The statutory rape definition includes acts involving a woman below eighteen regardless of purported consent; other child-protection legislation may also apply.

Does Section 375 itself specify the sentence?

No. It defines rape. The punishment under the former IPC was principally provided in Section 376; the BNS provides punishment in Section 64 and related provisions.