Chapter Five of the Bharatiya Nyaya Sanhita addresses offences against women and children. Sections 63 to 90 specifically cover crimes against women, including but not limited to rape, gang rape, outraging the modesty of a woman, sexual harassment, and stalking. These sections aim to provide a comprehensive legal framework to protect women’s rights and ensure their safety and dignity.
RAPE
The Latin word rapio, which meaning to seize, is the source of the English word rape. It therefore simply means “forced seizure,” which is the fundamental attribute of the violation. It refers to having sexual relations with a woman against her will by coercion, intimidation, or deception. Rape is defined under section 63 of Bharatiya Nyaya Sanhita.
The following constitute the essential elements of the offence of rape: (i) there must be sexual intercourse, as defined by section 63(a) to (d), between a man and a woman; (ii) the sexual intercourse must occur under one of the following seven circumstances: (a) against the woman’s will; (b) without her consent; (c) with consent obtained under fear of death or harm; (d) with consent given under the false impression that the man is her husband; (e) consent given due to intoxication, unsound mind, or under the influence of any stupefying or unwholesome substance; (f) with a woman under the age of eighteen, either with or without her consent; or (g) with a woman who is unable to express her consent. “Sexual Intercourse” as involving any level of penetration of the penis into the vagina, mouth, urethra, or anus of a female. This means that even the slightest penetration, no matter how small, is considered sufficient to constitute sexual intercourse. The depth of penetration doesn’t matter – what’s important is that there was some penetration. It’s also not necessary for the woman to have injuries or her hymen to be broken, or for the man to ejaculate for the act to be considered rape. The key element is the act of penetration itself, not ejaculation held in Aman Kumar v. State of Haryana. An offending act is considered to be done “against the will” of a woman when it is carried out despite her resistance and opposition. Consent means that a person actively agrees to an act, understanding what it involves, and willingly participates in it. It requires a voluntary agreement from the woman to engage in the specific sexual act, which she communicates through words, gestures, or other forms of verbal or non-verbal communication. Simply not physically resisting the act of penetration does not imply that she consents to the sexual act. In Addepalli Settibabu v. State of Andhra Pradesh, it was held that consent for sexual intercourse obtained by a false promise of marriage does not constitute true consent.
Whosoever commits rape except in the cases mentioned under sub – section (2) of section 64 shall be punished with rigorous imprisonment which shall be subject to a fine in addition to a term of imprisonment that cannot be less than 10 years but can go up to life. Any person who commits rape under the following circumstances shall be punished with rigorous imprisonment for a term not less than ten years, which may extend to imprisonment for life, meaning imprisonment for the remainder of that person’s natural life, and shall also be liable to a fine: (a) a police officer committing rape within the limits of the police station to which they are appointed, in any station house premises, or on a woman in their custody or in the custody of a subordinate police officer; (b) a public servant committing rape on a woman in their custody or in the custody of a subordinate public servant; (c) a member of the armed forces deployed in an area by the Central or State Government committing rape in such area; (d) a person on the management or staff of a jail, remand home, or other place of custody established by law, or of a women’s or children’s institution, committing rape on any inmate; (e) a person on the management or staff of a hospital committing rape on a woman in that hospital; (f) a relative, guardian, teacher, or person in a position of trust or authority towards the woman committing rape on such woman; (g) committing rape during communal or sectarian violence; (h) committing rape on a woman knowing her to be pregnant; (i) committing rape on a woman incapable of giving consent; (j) being in a position of control or dominance over a woman and committing rape on such woman; (k) committing rape on a woman suffering from a mental or physical disability; (l) causing grievous bodily harm, maiming, disfiguring, or endangering the life of a woman while committing rape; or (m) committing rape repeatedly on the same woman.
The Delhi gang rape case, known as Mukesh & Anr v. State (NCT of Delhi) & Ors (2017), involved the brutal assault of a 23-year-old woman, Nirbhaya, who was raped and severely injured by six men on December 16, 2012. After being forcibly boarded onto a vacant bus, Nirbhaya and her friend were violently attacked, with the assailants using an iron rod, leading to Nirbhaya’s death on December 29, 2012. Despite the defence’s claims of the accused’s non-presence at the crime scene, evidence including DNA and blood traces confirmed their involvement. The case sparked nationwide demands for stricter laws against sexual violence, leading to the Criminal Amendment Act, 2013. The Supreme Court deemed this case as “the rarest of rare” and sentenced the adult offenders to death, reflecting the gravity of the crime. The minor, however, was sent to a juvenile home for three years, as the legal provisions at the time did not permit a death penalty for those under 18.
OUTRAGING MODESTY OF THE WOMAN
Section 74 of the Bharatiya Nyaya Sanhita stipulates that anyone who uses criminal force or assaults a woman with the intention of outraging her modesty or knowing that he will likely do so will be punished with either type of imprisonment for a term that may not be less than one year but may be up to five years, as well as a fine.
In the case of Rupan Deol Bajaj v. Kanwar Pal Singh Gill (AIR 1996 SC 309: (1996) Cr J 381 (SC), the petitioner, Rupan Deol Bajaj, an Indian Administrative Service (IAS) officer from the Punjab cadre, filed a complaint against KPS Gill, the then Director General of Police, Punjab. She accused him of committing offences under sections 341, 342, 352, 354, and 509 of the Indian Penal Code (IPC). The incident occurred at a dinner party at the house of a colleague where KPS Gill was also present. Gill called Bajaj over to sit next to him and, as she was about to sit, he pulled her chair close to his. She moved the chair back, but when she tried to sit down again, he repeated the act. Recognizing his inappropriate behavior, she walked away. Later, Gill approached her, crooked his finger, and commanded her to follow him. She objected to his behavior, but he persisted, blocking her way and frightening her. She managed to move her chair back and stand up to leave, at which point Gill slapped her on the posterior in full view of other guests. Bajaj filed a complaint and a First Information Report (FIR) against Gill. He sought to have the FIR quashed in the Punjab & Haryana High Court, which the court granted, stating that the allegations did not constitute a cognizable offence and the harm caused was trivial, invoking section 95 of the IPC. However, upon appeal, the Supreme Court disagreed with the High Court’s decision. The Supreme Court ruled that quashing the FIR was illegal and section 95 IPC was not applicable in this case. The Court emphasized that offences involving the modesty of a woman could not be considered trivial under any circumstances.
STALKING
Section 78 of BNS states that any man who follows a woman and repeatedly attempts to initiate personal interaction despite her clear disinterest, or who monitors her use of the internet, email, or any other electronic communication, commits the offence of stalking. However, this conduct does not amount to stalking if the man can prove that it was done for the purpose of preventing or detecting crime and he was entrusted with this responsibility by the State, or it was pursued under any law or to comply with any legal condition or requirement, or if the conduct was reasonable and justified under the particular circumstances.
A person convicted of stalking for the first time can be punished with imprisonment for up to three years and shall also be fined. On a second or subsequent conviction, the punishment can extend to five years of imprisonment and shall also include a fine.
In the case of Arvind Kumar Gupta v. State (2018), a man persistently followed a woman to her office and stood near her home every day after she returned from work. This behaviour continued for a year until her brother confronted him. The man claimed that the woman reminded him of someone he intended to marry. The woman filed a First Information Report (FIR), and during the trial, the man could not justify his actions. The prosecution proved that he continuously followed her despite her clear lack of interest. The court found the man guilty of stalking under Section 354D(1)(i), as he sought to interact with her despite her dissent. The court sentenced him to simple imprisonment and imposed a fine.
DOWRY DEATH
Section 80 of BNS stipulates that if a woman’s death occurs within seven years of her marriage due to burns, bodily injury, or under abnormal circumstances, and it is shown that she was subjected to cruelty or harassment by her husband or his relatives related to demand for dowry shortly before her death, such a death is classified as “dowry death.” In this case, the husband or relative is considered responsible for her death. The punishment for committing dowry death is imprisonment for a term of not less than seven years and which may extend to life imprisonment.
In Pawan Kumar & Ors vs. State of Haryana (9 February 1998), the appellant, Pawan Kumar, was convicted for the dowry death of his wife, Urmil, who had returned to her parents’ house shortly after marriage due to dowry demands. Urmil faced harassment and torture from her in-laws, including derogatory comments, which led to her suicide by self-immolation. The court addressed whether the demands for a refrigerator and scooter constituted dowry demands and if the harassment occurred shortly before her death. The court held that demands for dowry do not require formal agreements and that the accused’s behaviour constituted cruelty and harassment under Sections 304B and 498A of the Indian Penal Code. Pawan Kumar was sentenced to seven years of rigorous imprisonment under Section 304B, with a fine of Rs 500, and additional imprisonment for default. He also received four years under Section 306 and two years under Section 498A, with fines and default penalties, all to run concurrently.
CONCLUSION
The Bharatiya Nyaya Sanhita 2023 provides a robust legal framework for addressing offences against women and children, including rape, outraging modesty, stalking, dowry deaths etc.. It clarifies that rape involves any level of penile penetration and that mere absence of resistance does not imply consent. Stalking is criminalized when repeated unwanted contact occurs, unless justified by legal duties. Dowry death is defined by the woman’s death under suspicious circumstances within seven years of marriage, following dowry-related harassment. Landmark cases, such as Pawan Kumar & Ors vs. State of Haryana and Arvind Kumar Gupta vs. State, illustrate the application of these laws, ensuring justice for victims and accountability for offenders.
AUTHOR Vridhi Saini, a student at University Institute of Legal Studies, Panjab University, Chandigarh
