Gender Justice and Feminist Jurisprudence | Offences Against Women: Bharatiya Nyaya Sanhita (BNS), 2023

The BNS has reorganized the structure of criminal law by moving "Offences against Women and Children" to Chapter V (Sections 63-99), giving them precedence over traditional offences like murder or theft. This shift is symbolic, signalling that the safety and dignity of women are foundational to the state's moral and legal fabric.

The Rape Framework (Sections 63–71)

The BNS maintains a gender-specific definition of rape (perpetrator as a man) while providing a highly stratified punishment regime based on age and circumstances.

1. Definition and General Punishment

1. Section 63 (Definition): Defines rape through four types of acts (penetration of vagina, mouth, urethra, or anus by penis or any object/body part) without the woman’s consent or under specific vitiating circumstances (fear, intoxication, etc.).
2. Exception 1: A medical procedure or intervention shall not constitute rape.
3. Crucial Exception: Exception 2 retains the immunity for Marital Rape, stating sexual intercourse by a man with his own wife (not being under 18 years of age) is not rape.

1. Section 64 (Punishment): Standard punishment for rape is rigorous imprisonment for not less than 10 years, which may extend to life, and a fine.

2. Special Provisions for Minors (Section 65)

The Act creates strict demarcations for victims under specific ages:

1. Section 65(1): Rape of a girl under 16 years of age.
2. Punishment: Rigorous imprisonment for not less than 20 years, which may extend to imprisonment for life (remainder of natural life), and a fine.

1. Section 65(2): Rape of a girl under 12 years of age.
2. Punishment: Rigorous imprisonment for not less than 20 years, which may extend to imprisonment for life (remainder of natural life), or death, and a fine.

3. Aggravated Situations (Sections 66–68)

1. Section 66: Punishment for rape causing death or persistent vegetative state.
2. Punishment: Rigorous imprisonment for not less than 20 years, extending to life (natural life) or death.

1. Section 67: This section addresses the "limited" recognition of sexual autonomy within marriage. It applies when a man has sexual intercourse with his wife without her consent while they are living separately under a decree of separation or otherwise.
2. Punishment: Imprisonment of either description for a term which shall not be less than two years, but which may extend to seven years, and a fine.
3. Jurisprudential Note: Unlike the general marital rape exception, Section 67 acknowledges that once the "matrimonial home" is fractured (even without a court order), the husband's presumed sexual access is legally revoked.

1. Section 68: Sexual intercourse by a person in authority. This applies to public servants, management/staff of jails, remand homes, or hospitals who abuse their position to induce or seduce a woman in their custody to have sexual intercourse (not amounting to the offence of rape).
2. Punishment: Rigorous imprisonment for not less than 5 years, extending to 10 years, and a fine.

Deceitful Means and Gang Rape

1. Section 69: Sexual Intercourse by Deceitful Means

This is a pivotal addition to "Sexuality and Morality in Law." It targets sexual intercourse obtained by:

1. Deceitful means (including false promise of employment or promotion, or concealing identity).
2. A promise to marry without any intention of fulfilling it.
3. Punishment: Imprisonment of either description for a term which may extend to 10 years and a fine.

2. Section 70: Gang Rape

1. Section 70(1) (General): Where a woman is raped by one or more persons constituting a group.
2. Punishment: Rigorous imprisonment for not less than 20 years, extending to life (natural life), and a fine.

1. Section 70(2) (Minor): Gang rape of a woman under 18 years of age.
2. Punishment: Imprisonment for life (remainder of natural life) or death, and a fine.

Summary Table: Sexual Offences & Punishments (BNS 2023)

Protection of Modesty and Privacy (Sections 74–79)

These sections address non-penetrative sexual offences and the violation of a woman's "social morality" and privacy.

Matrimonial Offences and Cruelty (Sections 80–86)

1. Section 80 (Dowry Death): Where death occurs within 7 years of marriage following cruelty/harassment related to dowry.
2. Punishment: 7 years to Life.

1. Section 84: Enticing or Taking Away a Married Woman
2. Punishment: Up to 2 years + Fine.

1. Section 85: Cruelty by husband or his relatives.
2. Punishment: Up to 3 years + Fine.

1. Section 86: Defines "Cruelty" to include wilful conduct likely to drive a woman to suicide or cause grave injury (physical or mental), and harassment for property/dowry.

1. Section 87: Kidnapping or Abducting to Compel Marriage
2. Punishment: Up to 10 years + Fine.

Offences Related to Miscarriage (Sections 88–92)

In Feminist Jurisprudence, these sections are studied as the state's attempt to regulate the "maternal body." While the Medical Termination of Pregnancy (MTP) Act provides legal avenues for abortion, the BNS provides the criminal framework for illegal acts.