5.2 Offences Against Women and Children

5.2 Offences Against Women and Children

[!NOTE] Structural Priority in BNS 2023: In a profound legislative reorganization, the Bharatiya Nyaya Sanhita, 2023 consolidates offences against women and children into Chapter V (Sections 63 to 99 BNS), placing them at the forefront of the penal code immediately after Preliminary (Chapter I), Punishments (Chapter II), General Exceptions (Chapter III), and Inchoate Offences (Chapter IV). Under the former IPC, these offences were fragmented across Chapters XVI and XX-A.

Securing justice for crimes against women and children demands rigorous analysis of statutory consent, evidentiary presumptions, and newly codified penal categories designed to eliminate long-standing judicial ambiguities.

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The Substantive Law of Rape: Section 63 BNS (IPC Section 375)

A man is said to commit "rape" if he engages in any of the following four physical acts with a woman:

1. Clause (a): Penetration of his penis into the vagina, urethra, anus, or mouth of a woman, or making her do so with him or any other person;
2. Clause (b): Inserting, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman, or making her do so with him or any other person;
3. Clause (c): Manipulating any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman, or making her do so with him or any other person; or
4. Clause (d): Applying his mouth to the penis, vagina, anus, or urethra of a woman, or making her do so with him or any other person.

The Seven Circumstances Negating Consent

The physical act constitutes rape if committed under any of the following seven circumstances:

1. First: Against her will.
2. Secondly: Without her consent.
3. Thirdly: With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
4. Fourthly: With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
5. Fifthly: With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration of any stupefying or unwh wholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
6. Sixthly: With or without her consent, when she is under eighteen years of age (Statutory Rape threshold).
7. Seventhly: When she is unable to communicate consent.

Statutory Definition of Consent: Explanation 2

Explanation 2 to Section 63 BNS defines consent as "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."

[!IMPORTANT] The Proviso to Explanation 2: The statute expressly dictates that a woman who does not physically resist to the act of penetration shall not, by the reason only of that fact, be regarded as consenting to the sexual activity. Physical resistance is not a condition precedent to establish non-consent.

Exceptions to Section 63 BNS

• Exception 1: A medical procedure or intervention does not constitute rape.
• Exception 2 (Marital Rape Exception): Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape. (Note: The age threshold was raised from 15 to 18 years following the Supreme Court's verdict in Independent Thought v. Union of India, (2017) 10 SCC 800).

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Sentencing Framework for Rape and Aggravated Offences

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The New Codified Offence: Section 69 BNS (Deceitful Means & False Promise to Marry)

Prior to the enactment of the BNS, prosecution of sexual intercourse obtained through a false promise of marriage was conducted under Section 375/376 IPC on the theory of "consent given under a misconception of fact" under Section 90 IPC. This led to conflicting judicial interpretations regarding whether breach of a promise to marry amounted to rape (Pramod Suryabhan Pawar v. State of Maharashtra, AIR 2019 SC 3397; Anurag Soni v. State of Chhattisgarh, (2019) 10 SCC 660).

Legislative Formulation of Section 69 BNS

Section 69 BNS creates an independent, specific substantive offence:

"Whoever, by deceitful means or making by promise to marry to a woman without any intention of fulfilling the same, and has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine."

Core Ingredients:

1. Accused uses deceitful means OR makes a promise to marry without any intention of fulfilling the same (bad faith at inception);
2. Has sexual intercourse with the woman;
3. The sexual intercourse does not amount to the offence of rape;
4. Statutory Definition of "Deceitful Means": The Explanation clarifies that deceitful means include:
   • False promise of employment or promotion;
   • Inducement;
   • Marrying after suppressing one's true identity.

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Offences Against Female Modesty and Bodily Autonomy

+-----------------------------------------------------------------------------------+
|              Spectrum of Offences Against Female Modesty & Privacy                |
+-----------------------------------------------------------------------------------+
|  1. Section 74 BNS (IPC 354)  --> Assault/Criminal Force to Outrage Modesty       |
|                                  [RI 1 to 5 Years + Fine]                         |
|  2. Section 75 BNS (IPC 354A) --> Sexual Harassment: Physical/Verbal/Pornography  |
|                                  [Up to 1 to 3 Years or Fine]                     |
|  3. Section 76 BNS (IPC 354B) --> Assault/Force with Intent to Disrobe / Strip    |
|                                  [Imprisonment 3 to 7 Years + Fine]               |
|  4. Section 77 BNS (IPC 354C) --> Voyeurism: Capturing/Sharing Private Act Images |
|                                  [1st: 1-3 Yrs; 2nd: 3-7 Yrs + Fine]              |
|  5. Section 78 BNS (IPC 354D) --> Stalking: Physical or Electronic Surveillance   |
|                                  [1st: Up to 3 Yrs; 2nd: Up to 5 Yrs + Fine]      |
+-----------------------------------------------------------------------------------+

Section 74 BNS: Outraging Modesty (IPC Section 354)

• Ingredients: Assault or use of criminal force to any woman, with intent to outrage, or knowing it to be likely that he will thereby outrage her modesty.
• Judicial Test of Modesty (State of Punjab v. Major Singh, AIR 1967 SC 63): Modesty is an attribute of female sex from birth. It is not dependent on age, whether the victim is a seven-month-old infant or a sleeping woman.

Section 75 BNS: Sexual Harassment (IPC Section 354A)

Covers four designated acts:

1. Unwelcome physical contact and advances involving explicit sexual overtures (up to 3 years or fine);
2. A demand or request for sexual favors (up to 3 years or fine);
3. Showing pornography against the will of a woman (up to 3 years or fine);
4. Making sexually colored remarks (up to 1 year or fine).

Section 76 BNS: Assault with Intent to Disrobe (IPC Section 354B)

Assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked. Punishable with imprisonment not less than three years extendable to seven years, and fine.

Section 77 BNS: Voyeurism (IPC Section 354C)

Watching or capturing the image of a woman engaging in a private act in circumstances where she would usually expect not to be observed. Punishment: First conviction 1 to 3 years + fine; subsequent conviction 3 to 7 years + fine.

Section 78 BNS: Stalking (IPC Section 354D)

Following a woman and contacting or attempting to contact her repeatedly despite a clear indication of disinterest, OR monitoring the use by a woman of the internet, email, or any other form of electronic communication.

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Matrimonial Offences: Dowry Death and Matrimonial Cruelty

Dowry Death: Section 80 BNS (IPC Section 304B)

Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage, and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death".

Statutory Mechanics and Presumptions:

• "Soon Before Her Death": Interpreted in Satvir Singh v. State of Punjab, (2001) 8 SCC 633 and Rajinder Singh v. State of Punjab, (2015) 6 SCC 390. There must be an unbroken proximate and live link between the effect of cruelty based on dowry demands and the death.
• Evidentiary Presumption (Section 118 BSA / Section 113B Evidence Act): When the foundational facts of dowry death under Section 80 BNS are established, the court shall presume that such person had caused the dowry death.
• Punishment: Imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

Cruelty by Husband or Relatives: Section 85 & 86 BNS (IPC Section 498A)

• Section 85 BNS: Husband or relative of husband subjecting woman to cruelty is punishable with imprisonment up to three years and fine.
• Section 86 BNS (Definition of Cruelty):
  • Clause (a): Any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (mental or physical);
  • Clause (b): Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security.

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Protection of Children: Begging Exploitation (Section 140 BNS / IPC 363A)

• Section 140(1) BNS: Kidnapping or obtaining custody of a child under the age of eighteen years for the purpose of employing or using such child for begging: Imprisonment not less than seven years extendable to ten years, and fine.
• Section 140(2) BNS: Maiming any child under eighteen years for the purpose of begging: Rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, and fine.
• Statutory Presumption under Section 140(3) BNS: A person, not being the lawful guardian, who employs or uses a child for begging, or finds a child maimed in their custody, is presumed to have kidnapped or maimed the child for begging until the contrary is proved.