Violence against women and children constitutes a grave violation of human rights. It remains one of the greatest challenges to achieving a safe environment for a vulnerable section of society. women and children are particularly vulnerable to various forms of violence, which leaves deep and long-term impacts on their lives, stifling their potential to grow, lead, prosper, and thrive. A nasty view toward women and children is a result of changes in social ethos, lifestyle, unbalanced economic growth, living standards that have changed, and a lack of regard for moral principles. As a result, crimes against women and children have increased. Furthermore, these kinds of instances are quite concerning. The system is vitally needed for them to live in a society free from brutality, denigration, and horrible crimes, and to live with honor, dignity, liberty, and peace, and here the law of the country comes into the picture.
Recently our nation went through a revamp of its criminal justice system With the introduction of three new criminal laws, Nyaya Sanhita, 2023; Nagarik Suraksha Sanhita, 2023; and Sakshya Adhiniyam, 2023. The Bhartiya Nyaya Sanhita, 2023 (w.e.f. 01-07-2-2024) was introduced to repeal the Indian Penal Code 1860 and to consolidate and amend the provisions relating to the offenses.
Earlier the Indian Penal Code of 1860 contained provisions for women as a victim of many crimes such as murder, robbery, theft, etc. but there are certain crimes that are diametrically characterized against women known as Offences Against Women. However, the provisions regarding the same were scattered in IPC but now in Bhartiya Nyaya Sanhita, 2023 offenses against women and children have been brought together under Chapter V, in one place, which were previously scattered under 4 separate chapters of the IPC.
Chapter
V titled OF OFFENCES AGAINST WOMAN AND CHILDis divided into five
headings which are as follows :
Of
sexual offences (Section 63 – 74)
Rape (section 63 and
64 )
In
simple terms, the offence of rape is the ravishment of a woman, without her
consent, by force, fraud, or fear.
Section
63 defines rape as :
A man is said to commit “rape” if he—
(a) penetrates his penis, to any extent, into the
vagina, mouth, urethra, or anus of a woman or makes her to do so with him or
any other person; or
(b) inserts, 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 makes her to do so with him or any other person; or
(c) manipulates 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 makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra
of a woman or makes her to do so with him or any other person, under the
circumstances falling under any of the following seven descriptions:—
(i) against her will;
(ii) without her consent;
(iii) 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;
(iv) 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;
(v) with her consent when, at the time of giving
such consent, by reason of unsoundness of mind or intoxication or the
administration by him personally or through another of any stupefying or
unwholesome substance, she is unable to understand the nature and consequences
of that to which she gives consent; (vi) with or without her consent, when she
is under eighteen years of age;
(vii) when she is unable to communicate consent.
Explanation
For the purposes of
this section, “vagina” shall also include labia majora.
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 to the act of penetration shall not by the reason only of that fact, be
regarded as consenting to the sexual activity.
Exception
A medical procedure or
intervention shall not constitute rape
Sexual intercourse or
sexual acts by a man with his own wife, the wife not being under eighteen years
of age, is not rape
Section
64 provides punishment for committing the heinous crime of rape. This section
is divided into two sub-sections.
Section
64 (1) provides a minimum sentence of ten years of rigorous imprisonment that
may extend to life imprisonment and fine.
Section
64 (2) imposes more severe punishment under certain circumstances such
perpetrator being a police officer, public servant, member of the armed forces,
relative, etc. shall be punished with rigorous imprisonment for a term which
shall not be less than ten years, but which may extend to imprisonment for
life, which shall mean imprisonment for the remainder of that person’s natural
life, and shall also be liable to fine.
Punishment for rape in
certain cases (section 65)
Under
this section, if a girl under the age of 16 is being raped then the perpetrator
shall be punished with rigorous imprisonment for a term which shall not be less
than twenty years, but which may extend to imprisonment for life, which shall
mean imprisonment for the remainder of that person’s natural life, and shall
also be liable to fine and if the girl is under the age of 12 then capital
punishment also be awarded.
Further,
the fine imposed shall be just and reasonable to meet the medical expenses and
rehabilitation of the victim and shall be paid to the victim.
Punishment for causing
death or resulting in persistent vegetative state of the victim (Section 66)
If
a person commits rape in the course of such commission and inflicts an injury
that causes the death of the woman or causes the woman to be in a persistent
vegetative state, shall be punished with rigorous imprisonment for a term which
shall not be less than twenty years, but which may extend to imprisonment for
life, which shall mean imprisonment for the remainder of that person’s natural
life, or with death.
Sexual intercourse by
husband upon his wife during separation (section 67)
This
section provides that whoever has sexual intercourse with his own wife, who is
living separately, whether under a decree of separation or otherwise, without
her consent, shall be punished with imprisonment of either description for a
term which shall not be less than two years but which may extend to seven years
and shall also be liable to fine.
Sexual intercourse by
a person in authority (section 68)
Whoever,
being— (a) in a position of authority or in a fiduciary relationship; or
(b)
a public servant; or
(c)
superintendent or manager of a jail, remand home or other place of custody
established by or under any law for the time being in force, or a women’s or
children’s institution; or
(d)
on the management of a hospital or being on the staff of a hospital, abuses
such position or fiduciary relationship to induce or seduce any woman either in
his custody or under his charge or present in the premises to have sexual
intercourse with him, such sexual intercourse not amounting to the offence of
rape, shall be punished with rigorous imprisonment of either description for a
term which shall not be less than five years, but which may extend to ten
years, and shall also be liable to fine.
Sexual intercourse by
employing deceitful means, etc. (Section 69)
This
section is a new addition under BNS, which provides that
Whoever,
by deceitful means or by making a promise to marry 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 of either description for a term which may extend to ten years and
shall also be liable to fine.
Where
a woman is raped by one or more persons constituting a group or acting in
furtherance of a common intention, each of those persons shall be deemed to
have committed the offence of rape and shall be punished with rigorous
imprisonment for a term which shall not be less than twenty years, but which
may extend to life which shall mean imprisonment for the remainder of that
person’s natural life, and with fine.
Where
a woman under eighteen years of age is raped by one or more persons
constituting a group or acting in furtherance of a common intention, each of
those persons shall be deemed to have committed the offence of rape and shall
be punished with imprisonment for life, which shall mean imprisonment for the
remainder of that person’s natural life, and with fine, or with death
The
fine imposed shall be just and reasonable to meet the medical expenses and
rehabilitation of the victim and shall be paid to the victim
Punishment for repeat
offenders (Section 71)
Whoever
has been previously convicted of an offense punishable under section 64 or
section 65 or section 66 or section 70 and is subsequently convicted of an
offense punishable under any of the said sections shall be punished with
imprisonment for life which shall mean imprisonment for the remainder of that
person’s natural life, or with death.
Disclosure of identity
of victim of certain offences, etc. (Section 72)
Whoever
prints or publishes the name or any matter which may make known the identity of
any person against whom an offence under section 64 or section 65 or section 66
or section 67 or section 68 , section 69 or section 70 or section 71 is alleged
or found to have been committed (hereafter in this section referred to as the
victim) shall be punished with imprisonment of either description for a term
which may extend to two years and shall also be liable to fine.
Printing or publishing
of any matter relating to Court proceedings without permission (Section 73)
Whoever
prints or publishes any matter in relation to any proceeding before a Court
with respect to an offence referred to in section 72 without the previous
permission of such Court shall be punished with imprisonment of either
description for a term which may extend to two years and shall also be liable
to fine however The printing or publication of the judgment of any High Court
or the Supreme Court does not amount to an offence within the meaning of this
section.
Of
criminal force and assault against women (Section 74 – 79)
Assault or use of
criminal force to woman with intent to outrage her modesty (Section 74)
Section
74 of BNS deals with assault on a woman with the intent to outrage her modesty.
This section aims to protect women against any sort of indecent or filthy
behavior by others which is derogatory to their modesty. This offence is not
just against the individual but also against society and public morality.
Therefore, if any person uses criminal force upon a woman with an intention to
outrage the modesty of a woman, he is deemed to be punished with an
imprisonment of not less than one year which may extend to five years with a
fine.
It
is not specifically defined under BNS what constitutes an outrage to a woman’s
modesty. However, the court has interpreted it in various cases. According to
the Supreme Court, modesty is an attribute associated with female human beings
as a class. Modesty is said to be outraged by such an act of offender which
shocks and recognizes as an insult to female decency and dignity.
Section
75 provides that a person shall be guilty of the offence of sexual harassment
against a woman in the following circumstances:
If he makes physical
contact and advances unwelcome and explicit sexual act;
Demands or requests
for sexual favors;
Shows pornography
against the will of a woman;
Make sexually colored
remarks.
The
punishment for the offences specified under Section 75 (1) (i) to (iii) is
rigorous imprisonment for a term which may extend to three years or with a fine
or both and in the case of sub clause (iv), it is imprisonment for a term which
may extend to one year or with fine or both.
Assault or use of
criminal force to woman with intent to disrobe (Section 76)
section
76 penalizes the offence of assaulting or using criminal force to a woman or
abetting any such act with an intention to disrobe or compel her to be naked,
with a punishment of not less than three years which may extend to seven years
with a fine. It is a gender specific offence i.e. only a man can be punished
under this section.
Voyeurism
can be expounded as an interest in observing unsuspecting people while they
undress, naked, or engage in sexual activities. The person doing the watching
is called a voyeur. In general, they are called peeping toms.
Section
77 provides that
Any man who watches, or captures the image of, a
woman engaging in a private act in circumstances where she would usually have
the expectation of not being observed either by the perpetrator or by any other
person at the behest of the perpetrator or disseminates such image shall be
punished on first conviction with imprisonment of either description for a term
which shall not be less than one year, but which may extend to three years, and
shall also be liable to fine, and be punished on a second or subsequent
conviction, with imprisonment of either description for a term which shall not
be less than three years, but which may extend to seven years, and shall also
be liable to fine.
The
term ‘stalking’ generally means the act of following or trying to contact
despite the disinterest of a woman. This section contains two offences.
Firstly, where a man follows or contacts or attempts to contact a woman
repeatedly despite her clear indication of disinterest, and secondly, where a
man monitors the use by a woman of the internet, email, or any other form of
electronic communication.
For
the first conviction, the punishment prescribed is imprisonment for a term
which may extend to three years with a fine. The punishment for a second
conviction may extend up to five years of imprisonment with a fine.
Word, gesture, or act
intended to insult the modesty of a woman (Section 79)
An
act that is done intending to insult the modesty of a woman which may not
necessarily involve any physical force is brought under the shade of this
provision through Section 509. This section intends to deter any kind of
aggression into a woman’s modesty whether by any word, gesture, or act or by
intruding upon the privacy of such woman. This section is also referred to as
the Eve Teasing Section.
Any
person who commits an offence under Section 509 shall be punished with simple
imprisonment for a term that may extend to three years with a fine.
Dowry
deaths and bride burning are sinful acts that still prevailing in Indian
society. It is a symptom of a special social illness and are unfortunate
development of our society. For this serious matter, the special provision was
inserted under BNS through Section 80 which deals with dowry deaths.
Section
80 defines dowry death as:
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 har�assment aby her husband or any relative of her
husband for, or in connection with, any demand for dowry, such death shall be
called dowry death, and such husband or relative shall be deemed to have caused
her death.
Explanation:
For
the purpose of this sub-section, dowry shall have the same meaning as in
section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
Whoever
commits dowry death shall be punished with imprison�ment for a term which
shall not be less than seven years but which may extend to imprisonment for
life.
Cohabitation caused by
man deceitfully inducing belief of lawful marriage (Section 81)
Every
man who by deceit causes any woman who is not lawfully married to him to
believe that sheis lawfully married
to him and to cohabit or have sexual intercourse with him in that belief shall
be punished with imprisonment of either description for a term which may extend
to ten years, and shall also be liable to fine.
Marrying again during
lifetime of husband or wife (Section 82)
Section
82 of BNS provides for bigamy as
Whoever,
having a husband or wife living, marries in any case in which such marriage is
void by reason of its taking place during the life of such husband or wife,
shall be punished with imprisonment of either description for a term which may
extend to seven years, and shall also be liable to fine.
Section
82 (2) provides that Whoever commits the offence under sub-section (1) having
concealed from the person with whom the subsequent marriage is contracted, the
fact of the former marriage, shall be punished with imprisonment of either
description for a term which may extend to ten years, and shall also be liable
to fine.
Marriage ceremony
fraudulently gone through without lawful marriage (Section 83)
Whoever,
dishonestly or with a fraudulent intention, goes through the ceremony of being
married, knowing that he is not thereby lawfully married, shall be punished
with imprisonment of either description for a term which may extend to seven
years, and shall also be liable to fine.
Enticing or taking
away or detaining with criminal intent a married woman (Section 84)
Whoever
takes or entices away any woman who is and whom he knows or has reason to
believe to be the wife of any other man, with the intent that she may have
illicit intercourse with any person, or conceals or detains with that intent
any such woman, shall be punished with imprisonment of either description for a
term which may extend to two years, or with fine, or with both.
Husband or relative of
husband of a woman subjecting her to cruelty (Section 85 & 86)
Section
85 of BNS provides that Whoever, being the husband or the relative of the
husband of a woman, subjects such woman to cruelty shall be punished with
imprisonment for a term which may extend to three years and shall also be
liable to a fine.
and
Section 86 defines the term Cruelty as :
(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
(whether mental or physical) of the woman; or
(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 or is on account of failure by her or any person related to
her to meet such demand.
Whoever
kidnaps or abducts any woman with intent that she may be compelled, or knowing
it to be likely that she will be compelled, to marry any person against her
will, or in order that she may be forced or seduced to illicit intercourse, or
knowing it to be likely that she will be forced or seduced to illicit
intercourse, shall be punished with imprisonment of either description for a
term which may extend to ten years, and shall also be liable to fine; and
whoever, by means of criminal intimidation as defined in this Sanhita or of
abuse of authority or any other method of compulsion, induces any woman to go
from any place with intent that she may be, or knowing that it is likely that
she will be, forced or seduced to illicit intercourse with another person shall
also be punishable as aforesaid.
Of
causing miscarriage, etc. (Section 88-92)
Abortion
is a deliberate termination of pregnancy, resulting in the removal or expulsion
of the fetus or embryo from the uterus, before it is able to survive outside
the uterus or can develop to full term. It is a voluntary decision made by the
pregnant woman or due to medical reasons in some cases and is also known as
induced abortion. Abortion can be performed through various methods such as
medication or surgical procedures.
On
the other hand, miscarriage is the natural or unintentional loss of a pregnancy
before the fetus is able to survive due to various factors such as hormonal
imbalances, fetal development problems, genetic abnormalities, or maternal
health issues. It is also referred to as spontaneous abortion and often happens
during the first trimester of pregnancy, but it can occur at any stage before
the fetus reaches viability. Miscarriages are typically beyond the control of
the pregnant women and are not the result of any intentional action to
terminate the pregnancy. Under the Bhartiya Nyaya Sanhita 2023, voluntarily
causing a miscarriage is a punishable offence and is mentioned in Section 88 of
the BNS.
Causing miscarriage
(Section 88)
Whoever
voluntarily causes a woman with child to miscarry, shall, if such miscarriage
be not caused in good faith for the purpose of saving the life of the woman, be
punished with imprisonment of either description for a term which may extend to
three years, or with fine, or with both; and, if the woman be quick with child,
shall be punished with imprisonment of either description for a term which may
extend to seven years, and shall also be liable to fine.
Section
89 provides for Causing
miscarriage without a woman’s consent. which shall be punished with
imprisonment for life, or with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine.
Section
91 deals with Act done with
intent to prevent child being born alive or to cause to die after birth it
provides that Whoever before the birth of any child does any act with the
intention of thereby preventing that child from being born alive or causing it
to die after its birth, and does by such act prevent that child from being born
alive, or causes it to die after its birth, shall, if such act be not caused in
good faith for the purpose of saving the life of the mother, be punished with
imprisonment of either description for a term which may extend to ten years, or
with fine, or with both.
Section
92 provides that Whoever does any act under such circumstances, that if he
thereby caused death he would be guilty of culpable homicide, and does by such
act cause the death of a quick unborn child, shall be punished with
imprisonment of either description for a term which may extend to ten years,
and shall also be liable to fine.
Of
offences against child (Section 93 – 99)
Exposure and
abandonment of child under twelve years of age, by parent or person having care
of it(Section 93)
Section
93 provides that
Whoever
being the father or mother of a child under the age of twelve years, or having
the care of such child, shall expose or leave such child in any place with the
intention of wholly abandoning such child, shall be punished with imprisonment
of either description for a term which may extend to seven years, or with fine,
or with both. Explanation.—This section is not intended to prevent the trial of
the offender for murder or culpable homicide, as the case may be, if the child
die in consequence of the exposure.
Concealment of birth
by secret disposal of dead body(Section 94)
Whoever,
by secretly burying or otherwise disposing of the dead body of a child whether
such child dies before or after or during its birth, intentionally conceals or
endeavours to conceal the birth of such child, shall be punished with
imprisonment of either description for a term which may extend to two years, or
with fine, or with both.
Hiring, employing or
engaging a child to commit an offence (Section 95)
Whoever
hires, employs or engages any child to commit an offence shall be punished with
imprisonment of either description which shall not be less than three years but
which may extend to ten years, and with a fine; and if the offence be committed
shall also be punished with the punishment provided for that offence as if the
offence has been committed by such person himself.
Explanation.—Hiring,
employing, engaging or using a child for sexual exploitation or pornography is
covered within the meaning of this section
Procuration of a
child. (Section 96)
Whoever,
by any means whatsoever, induces any child to go from any place or to do any
act with intent that such child may be, or knowing that it is likely that such
child will be, forced or seduced to illicit intercourse with another person
shall be punishable with imprisonment which may extend to ten years, and shall
also be liable to fine.
Kidnapping or
abducting child under ten years of age with intent to steal from its person
(Section 97)
Whoever
kidnaps or abducts any child under the age of ten years with the intention of
dishonestly taking any movable property from the person of such child, shall be
punished with imprisonment of either description for a term which may extend to
seven years, and shall also be liable to fine.
Selling child for
purposes of prostitution, etc.(Section 98)
Whoever
sells, lets to hire, or otherwise disposes of any child with intent that such
child shall at any age be employed or used for the purpose of prostitution or
illicit intercourse with any person or for any unlawful and immoral purpose, or
knowing it to be likely that such child will at any age be employed or used for
any such purpose, shall be punished with imprisonment of either description for
a term which may extend to ten years, and shall also be liable to fine.
Explanation
1. When a female under the age of eighteen years is sold, let for hire, or
otherwise disposed of to a prostitute or to any person who keeps or manages a
brothel, the person so disposing of such female shall, until the contrary is
proved, be presumed to have disposed of her with the intent that she shall be
used for the purpose of prostitution.
Explanation
2. For the purposes of this section “illicit intercourse” means
sexual intercourse between persons not united by marriage or by any union or
tie which, though not amounting to a marriage, is recognized by the personal
law or custom of the community to which they belong or, where they belong to
different communities, of both such communities, as constituting between them a
quasi-marital relation
Buying child for
purposes of prostitution, etc(Section 99)
Whoever
buys, hires, or otherwise obtains possession of any child with intent that such
child shall at any age be employed or used for the purpose of prostitution or
illicit intercourse with any person or for any unlawful and immoral purpose, or
knowing it to be likely that such child will at any age be employed or used for
any such purpose, shall be punished with imprisonment of either description for
a term which shall not be less than seven years but which may extend to
fourteen years, and shall also be liable to fine.
Explanation
1.—Any prostitute or any person keeping or managing a brothel, who buys, hires
or otherwise obtains possession of a female under the age of eighteen years
shall, until the contrary is proved, be presumed to have obtained possession of
such female with the intent that she shall be used for the purpose of
prostitution.
Explanation
2.—”Illicit intercourse” has the same meaning as in section 98.
Conclusion
BNS consolidates provisions regarding offences against women and children under chapter V. Apart from BNS which provides for the general penal code for the country, there are various other special laws enacted for the protection of women such as Indecent Representation of Women 1986, The Protection Of Women from Domestic Violence Act 2005, etc. and Protection of Children From Sexual Offences 2012, Juvenile Justice (Care and Protection of Children) Act, 2015 for the protection of children that provides for special provisions for the protection of rights of women and children.
JURISEDGE
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Violence against women and children constitutes a grave violation of human rights. It remains one of the greatest challenges to achieving a safe environment for a vulnerable section of society. women and children are particularly vulnerable to various forms of violence, which leaves deep and long-term impacts on their lives, stifling their potential to grow, lead, prosper, and thrive. A nasty view toward women and children is a result of changes in social ethos, lifestyle, unbalanced economic growth, living standards that have changed, and a lack of regard for moral principles. As a result, crimes against women and children have increased. Furthermore, these kinds of instances are quite concerning. The system is vitally needed for them to live in a society free from brutality, denigration, and horrible crimes, and to live with honor, dignity, liberty, and peace, and here the law of the country comes into the picture.
Recently our nation went through a revamp of its criminal justice system With the introduction of three new criminal laws, Nyaya Sanhita, 2023; Nagarik Suraksha Sanhita, 2023; and Sakshya Adhiniyam, 2023. The Bhartiya Nyaya Sanhita, 2023 (w.e.f. 01-07-2-2024) was introduced to repeal the Indian Penal Code 1860 and to consolidate and amend the provisions relating to the offenses.
Earlier the Indian Penal Code of 1860 contained provisions for women as a victim of many crimes such as murder, robbery, theft, etc. but there are certain crimes that are diametrically characterized against women known as Offences Against Women. However, the provisions regarding the same were scattered in IPC but now in Bhartiya Nyaya Sanhita, 2023 offenses against women and children have been brought together under Chapter V, in one place, which were previously scattered under 4 separate chapters of the IPC.
Chapter V titled OF OFFENCES AGAINST WOMAN AND CHILD is divided into five headings which are as follows :
Rape (section 63 and 64 )
In simple terms, the offence of rape is the ravishment of a woman, without her consent, by force, fraud, or fear.
Section 63 defines rape as :
A man is said to commit “rape” if he—
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra, or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, 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 makes her to do so with him or any other person; or
(c) manipulates 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 makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:—
(i) against her will;
(ii) without her consent;
(iii) 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;
(iv) 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;
(v) with her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent; (vi) with or without her consent, when she is under eighteen years of age;
(vii) when she is unable to communicate consent.
Explanation
Exception
Punishment for rape
Section 64 provides punishment for committing the heinous crime of rape. This section is divided into two sub-sections.
Section 64 (1) provides a minimum sentence of ten years of rigorous imprisonment that may extend to life imprisonment and fine.
Section 64 (2) imposes more severe punishment under certain circumstances such perpetrator being a police officer, public servant, member of the armed forces, relative, etc. shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine.
Punishment for rape in certain cases (section 65)
Under this section, if a girl under the age of 16 is being raped then the perpetrator shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine and if the girl is under the age of 12 then capital punishment also be awarded.
Further, the fine imposed shall be just and reasonable to meet the medical expenses and rehabilitation of the victim and shall be paid to the victim.
Punishment for causing death or resulting in persistent vegetative state of the victim (Section 66)
If a person commits rape in the course of such commission and inflicts an injury that causes the death of the woman or causes the woman to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, or with death.
Sexual intercourse by husband upon his wife during separation (section 67)
This section provides that whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years and shall also be liable to fine.
Sexual intercourse by a person in authority (section 68)
Whoever, being— (a) in a position of authority or in a fiduciary relationship; or
(b) a public servant; or
(c) superintendent or manager of a jail, remand home or other place of custody established by or under any law for the time being in force, or a women’s or children’s institution; or
(d) on the management of a hospital or being on the staff of a hospital, abuses such position or fiduciary relationship to induce or seduce any woman either in his custody or under his charge or present in the premises to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than five years, but which may extend to ten years, and shall also be liable to fine.
Sexual intercourse by employing deceitful means, etc. (Section 69)
This section is a new addition under BNS, which provides that
Whoever, by deceitful means or by making a promise to marry 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 of either description for a term which may extend to ten years and shall also be liable to fine.
Gang rape (section 70)
Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person’s natural life, and with fine.
Where a woman under eighteen years of age is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and with fine, or with death
The fine imposed shall be just and reasonable to meet the medical expenses and rehabilitation of the victim and shall be paid to the victim
Punishment for repeat offenders (Section 71)
Whoever has been previously convicted of an offense punishable under section 64 or section 65 or section 66 or section 70 and is subsequently convicted of an offense punishable under any of the said sections shall be punished with imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life, or with death.
Disclosure of identity of victim of certain offences, etc. (Section 72)
Whoever prints or publishes the name or any matter which may make known the identity of any person against whom an offence under section 64 or section 65 or section 66 or section 67 or section 68 , section 69 or section 70 or section 71 is alleged or found to have been committed (hereafter in this section referred to as the victim) shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.
Printing or publishing of any matter relating to Court proceedings without permission (Section 73)
Whoever prints or publishes any matter in relation to any proceeding before a Court with respect to an offence referred to in section 72 without the previous permission of such Court shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine however The printing or publication of the judgment of any High Court or the Supreme Court does not amount to an offence within the meaning of this section.
Assault or use of criminal force to woman with intent to outrage her modesty (Section 74)
Section 74 of BNS deals with assault on a woman with the intent to outrage her modesty. This section aims to protect women against any sort of indecent or filthy behavior by others which is derogatory to their modesty. This offence is not just against the individual but also against society and public morality. Therefore, if any person uses criminal force upon a woman with an intention to outrage the modesty of a woman, he is deemed to be punished with an imprisonment of not less than one year which may extend to five years with a fine.
It is not specifically defined under BNS what constitutes an outrage to a woman’s modesty. However, the court has interpreted it in various cases. According to the Supreme Court, modesty is an attribute associated with female human beings as a class. Modesty is said to be outraged by such an act of offender which shocks and recognizes as an insult to female decency and dignity.
Sexual harassment (Section 75)
Section 75 provides that a person shall be guilty of the offence of sexual harassment against a woman in the following circumstances:
The punishment for the offences specified under Section 75 (1) (i) to (iii) is rigorous imprisonment for a term which may extend to three years or with a fine or both and in the case of sub clause (iv), it is imprisonment for a term which may extend to one year or with fine or both.
Assault or use of criminal force to woman with intent to disrobe (Section 76)
section 76 penalizes the offence of assaulting or using criminal force to a woman or abetting any such act with an intention to disrobe or compel her to be naked, with a punishment of not less than three years which may extend to seven years with a fine. It is a gender specific offence i.e. only a man can be punished under this section.
Voyeurism (Section 77)
Voyeurism can be expounded as an interest in observing unsuspecting people while they undress, naked, or engage in sexual activities. The person doing the watching is called a voyeur. In general, they are called peeping toms.
Section 77 provides that
Any man who watches, or captures the image of, a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image shall be punished on first conviction with imprisonment of either description for a term which shall not be less than one year, but which may extend to three years, and shall also be liable to fine, and be punished on a second or subsequent conviction, with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years, and shall also be liable to fine.
Stalking (Section 78)
The term ‘stalking’ generally means the act of following or trying to contact despite the disinterest of a woman. This section contains two offences. Firstly, where a man follows or contacts or attempts to contact a woman repeatedly despite her clear indication of disinterest, and secondly, where a man monitors the use by a woman of the internet, email, or any other form of electronic communication.
For the first conviction, the punishment prescribed is imprisonment for a term which may extend to three years with a fine. The punishment for a second conviction may extend up to five years of imprisonment with a fine.
Word, gesture, or act intended to insult the modesty of a woman (Section 79)
An act that is done intending to insult the modesty of a woman which may not necessarily involve any physical force is brought under the shade of this provision through Section 509. This section intends to deter any kind of aggression into a woman’s modesty whether by any word, gesture, or act or by intruding upon the privacy of such woman. This section is also referred to as the Eve Teasing Section.
Any person who commits an offence under Section 509 shall be punished with simple imprisonment for a term that may extend to three years with a fine.
Dowry death (section 80)
Dowry deaths and bride burning are sinful acts that still prevailing in Indian society. It is a symptom of a special social illness and are unfortunate development of our society. For this serious matter, the special provision was inserted under BNS through Section 80 which deals with dowry deaths.
Section 80 defines dowry death as:
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 har�assment aby her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called dowry death, and such husband or relative shall be deemed to have caused her death.
Explanation:
For the purpose of this sub-section, dowry shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
Whoever commits dowry death shall be punished with imprison�ment for a term which shall not be less than seven years but which may extend to imprisonment for life.
Cohabitation caused by man deceitfully inducing belief of lawful marriage (Section 81)
Every man who by deceit causes any woman who is not lawfully married to him to believe that sheis lawfully married to him and to cohabit or have sexual intercourse with him in that belief shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Marrying again during lifetime of husband or wife (Section 82)
Section 82 of BNS provides for bigamy as
Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 82 (2) provides that Whoever commits the offence under sub-section (1) having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Marriage ceremony fraudulently gone through without lawful marriage (Section 83)
Whoever, dishonestly or with a fraudulent intention, goes through the ceremony of being married, knowing that he is not thereby lawfully married, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Enticing or taking away or detaining with criminal intent a married woman (Section 84)
Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, with the intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Husband or relative of husband of a woman subjecting her to cruelty (Section 85 & 86)
Section 85 of BNS provides that Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to a fine.
and Section 86 defines the term Cruelty as :
(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 (whether mental or physical) of the woman; or
(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 or is on account of failure by her or any person related to her to meet such demand.
Kidnapping, abducting, or inducing woman to compel her marriage, etc ( Section 87)
Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Sanhita or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid.
Abortion is a deliberate termination of pregnancy, resulting in the removal or expulsion of the fetus or embryo from the uterus, before it is able to survive outside the uterus or can develop to full term. It is a voluntary decision made by the pregnant woman or due to medical reasons in some cases and is also known as induced abortion. Abortion can be performed through various methods such as medication or surgical procedures.
On the other hand, miscarriage is the natural or unintentional loss of a pregnancy before the fetus is able to survive due to various factors such as hormonal imbalances, fetal development problems, genetic abnormalities, or maternal health issues. It is also referred to as spontaneous abortion and often happens during the first trimester of pregnancy, but it can occur at any stage before the fetus reaches viability. Miscarriages are typically beyond the control of the pregnant women and are not the result of any intentional action to terminate the pregnancy. Under the Bhartiya Nyaya Sanhita 2023, voluntarily causing a miscarriage is a punishable offence and is mentioned in Section 88 of the BNS.
Causing miscarriage (Section 88)
Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 89 provides for Causing miscarriage without a woman’s consent. which shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Section 90 provides for Death caused by an act done with intent to cause miscarriage which shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Section 91 deals with Act done with intent to prevent child being born alive or to cause to die after birth it provides that Whoever before the birth of any child does any act with the intention of thereby preventing that child from being born alive or causing it to die after its birth, and does by such act prevent that child from being born alive, or causes it to die after its birth, shall, if such act be not caused in good faith for the purpose of saving the life of the mother, be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both.
Section 92 provides that Whoever does any act under such circumstances, that if he thereby caused death he would be guilty of culpable homicide, and does by such act cause the death of a quick unborn child, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Exposure and abandonment of child under twelve years of age, by parent or person having care of it (Section 93)
Section 93 provides that
Whoever being the father or mother of a child under the age of twelve years, or having the care of such child, shall expose or leave such child in any place with the intention of wholly abandoning such child, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. Explanation.—This section is not intended to prevent the trial of the offender for murder or culpable homicide, as the case may be, if the child die in consequence of the exposure.
Concealment of birth by secret disposal of dead body(Section 94)
Whoever, by secretly burying or otherwise disposing of the dead body of a child whether such child dies before or after or during its birth, intentionally conceals or endeavours to conceal the birth of such child, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Hiring, employing or engaging a child to commit an offence (Section 95)
Whoever hires, employs or engages any child to commit an offence shall be punished with imprisonment of either description which shall not be less than three years but which may extend to ten years, and with a fine; and if the offence be committed shall also be punished with the punishment provided for that offence as if the offence has been committed by such person himself.
Explanation.—Hiring, employing, engaging or using a child for sexual exploitation or pornography is covered within the meaning of this section
Procuration of a child. (Section 96)
Whoever, by any means whatsoever, induces any child to go from any place or to do any act with intent that such child may be, or knowing that it is likely that such child will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.
Kidnapping or abducting child under ten years of age with intent to steal from its person (Section 97)
Whoever kidnaps or abducts any child under the age of ten years with the intention of dishonestly taking any movable property from the person of such child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Selling child for purposes of prostitution, etc.(Section 98)
Whoever sells, lets to hire, or otherwise disposes of any child with intent that such child shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such child will at any age be employed or used for any such purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Explanation 1. When a female under the age of eighteen years is sold, let for hire, or otherwise disposed of to a prostitute or to any person who keeps or manages a brothel, the person so disposing of such female shall, until the contrary is proved, be presumed to have disposed of her with the intent that she shall be used for the purpose of prostitution.
Explanation 2. For the purposes of this section “illicit intercourse” means sexual intercourse between persons not united by marriage or by any union or tie which, though not amounting to a marriage, is recognized by the personal law or custom of the community to which they belong or, where they belong to different communities, of both such communities, as constituting between them a quasi-marital relation
Buying child for purposes of prostitution, etc(Section 99)
Whoever buys, hires, or otherwise obtains possession of any child with intent that such child shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such child will at any age be employed or used for any such purpose, shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to fourteen years, and shall also be liable to fine.
Explanation 1.—Any prostitute or any person keeping or managing a brothel, who buys, hires or otherwise obtains possession of a female under the age of eighteen years shall, until the contrary is proved, be presumed to have obtained possession of such female with the intent that she shall be used for the purpose of prostitution.
Explanation 2.—”Illicit intercourse” has the same meaning as in section 98.
Conclusion
BNS consolidates provisions regarding offences against women and children under chapter V. Apart from BNS which provides for the general penal code for the country, there are various other special laws enacted for the protection of women such as Indecent Representation of Women 1986, The Protection Of Women from Domestic Violence Act 2005, etc. and Protection of Children From Sexual Offences 2012, Juvenile Justice (Care and Protection of Children) Act, 2015 for the protection of children that provides for special provisions for the protection of rights of women and children.
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