Chapter V – Offences Against Women and Children 

1. INTRODUCTION 

Throughout the history of humankind, the two communities which have been the most  vulnerable and have faced the most gruesome injustices are women and children. Especially in  the Indian context, women have been the subject of cruelty for the most part. Though law  recognises those basic human rights of women and children and has made laws to protect them 

in the modern period, cruelty and abuse to women and abandonment of female children were the “norm” of the past, pre-modern societies. It is quite unfortunate that the justice system  makes laws, imposes policies and guidelines after gruesome and brutal violence happens  against women and causes uproar nationwide. From Mathura rape case to Nirbhaya, India has  seen the constant oppression of women and children at the hands of men time after time. These  most unfortunate cases of violence against women and children have led to the evolution of  criminal laws, and now, it can be said that the Indian Criminal Justice System has robust  legislation related to crimes against women and children. The Bhartiya Nyaya Sanhita, like its  predecessor, the Indian Penal Code, recognises these offences against women and children in  Chapter V (Sections 63 – 99) of the Bhartiya Nyaya Sanhita 2023. In the following points, all  of the offences listed in the statute and their remedies will be discussed thoroughly. 

2. SEXUAL OFFENCES 

One of the most gruesome ways violence can be inflicted on women is through sexual  offences. Sexual Offences are of a dynamic range which has been discussed under the BNS  from Sections 63 – 73 in Chapter V of the statute. These offences not only cause bodily injury  to the women, but also cause long-term psychological effects on the women’s minds and  snatch away their modesty.

2.1 Rape 

The Bhartiya Nyaya Sanhita defines the crime of rape in India under section 63 of the statute.  The circumstances under which sexual contact may be considered rape are covered in this  section, along with the associated penalties. According to this clause, someone commits “rape”  if: 

∙ penetrates a woman’s mouth, urethra, anus, or vagina to any degree with his penis, or  forces her to do so with him or another individual. 

∙ inserts, to a certain degree, any part of the body—other than the penis—into a woman’s  urethra, anus, or vagina, or forces her to do so with him or another individual. ∙ manipulates a woman’s body in any way to allow penetration into her anus, urethra,  vagina, or any other portion of her body, or coerces her into doing so with him or  another individual. 

∙ puts his mouth on a woman’s vagina, anus, or urethra, or forces her to do so with him  or another individual. 

The clause further elaborates on the conditions under which rape can happen: ∙ against her will.  

∙ without her consent.  

∙ 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 hurt. 

∙ 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. 

∙ with her consent when, at the time of giving such consent, because of mental illness or  intoxication, she is unable to understand the nature and consequences of that to which  she gives consent. 

∙ with or without her consent, when she is under eighteen years of age. ∙ when she is unable to communicate consent.

2.2 Evolution of Rape laws in India 

In the 1860s, the IPC gave us the first definition of rape. It was characterised as having  intercourse against a woman’s will or consent, in addition to obtaining consent by instilling fear  of death or harm in the victim or everyone she is close to. The idea of rape remained unchanged  for the following century or so, showing no signs of amendments until the Mathura Rape Case. 

2.2.1 Mathura Custodial Rape case 

After the Supreme Court freed the defendants in the case of Tuka Ram and Anr. vs State of  Maharashtra,1also known as the Mathura custodial rape case, the rape laws experienced some  major changes. Custodial rape, which relates to rapes committed by law enforcement, was  included to the definition of rape. Consequently, the Indian Evidence Act of 1872 was amended  to include 114 A. This new section, which related to custodial rapes, assumed a lack of consent  in certain circumstances if the victim stated so. The IPC was also amended to include Section  228A, which forbade victim character assassination and made it illegal to reveal the name of  victims of specific crimes, including rape. Even though it was illegal, cross-examination was  not considered character assassination. As a result, when a victim spoke, attorneys deliberately  made an effort to degrade her by inquiring about her sexual history and undermining her  testimony by telling the judges that the victim was “immoral.”  

By this, the victim’s sexual integrity was jeopardised, and she experienced additional anguish.  The Supreme Court took notice of this after a Public Interest Litigation (PIL) asked the law  commission to recommend changes to our rape laws. As a result, Section 155(4) of the Indian  Evidence Act was later modified. After the modification, cross-examination of victims was  prohibited. 

2.2.2 Nirbhaya Rape Case 

A physiotherapy intern was viciously gang-raped in a moving bus on December 16, 2012; she  was then flung off the bus and, a few days later, passed away from her wounds. Because of the  savagery of the crime, the Nirbhaya Gang rape case received extensive media coverage and  rocked the nation. The government took the initiative to amend the laws to prevent a crime of  this magnitude from occurring again as a result of the widespread public outcry. 

The Juvenile Justice Act and the 2013 Criminal Amendment Act were the results of the  Supreme Court’s judgement on Mukesh & Anr. v. State for NCT of Delhi & Ors 2 

1. Tuka Ram and Anr. vs State of Maharashtra, 1979 AIR 185 SCR (1) 810 
2. Mukesh & Anr. v. State for NCT of Delhi & Ors., AIR 2017 (6) SCC 1

The definition of rape was expanded by the 2013 criminal amendment, which also raised the  penalty for gang rape from 10 years to life to 20 years to life. The minimum penalty for rape,  which had not altered since 1860, was raised from seven to ten years, and new crimes such as  stalking, voyeurism, and acid attacks were added. In situations when the victim was slain or  placed in a vegetative state, it also allowed for the death penalty. Following the historic Aruna  Shanbaug case, the definition was first amended to encompass the vegetative condition. 

2.2.3 Asifa Bano Rape Case 

A group of men raped and killed 8-year-old Asifa Bano in the Kathua area of Jammu &  Kashmir in January 2018. A priest at the temple where the rape occurred was the primary  accused. Nationwide demonstrations and calls for tougher legislation resulted from this case.  Amid the political unrest in Jammu and Kashmir, this case became heavily politicised along  communal lines. The Supreme Court judgment on Mohd. Akhtar vs The State of Jammu and  Kashmir (2018)3led to the 2018 Criminal Amendment Act, which mainly changed POCSO Act, because the rape was against a juvenile. In addition to a minimum punishment of 20 years  in jail, the act permitted the death penalty for rape of a minor under the age of twelve. A new  provision that addressed the crime of rape against a juvenile under the age of sixteen was added  to the IPC. This felony carried a sentence of 20 years to life in prison. 

2.3 Punishment for Rape 

After observing the various heinous rape cases throughout the history of our country, it is only  just that the punishment for rape will be fairly strict. Thus, under Section 64 of the Bhartiya  Nyaya Sanhita 2023, if a person commits the act of rape, generally he will be subjected to  rigorous imprisonment for minimum of 10 years, which may also extend to a life imprisonment  sentence, and shall also be liable to fine. 

3. Mohd. Akhtar vs The State of Jammu and Kashmir, AIR 2018 (5) SCC 499

In certain special circumstances, enumerated under Section 64(2) of the Sanhita, he will be  subjected to rigorous imprisonment for minimum of 10 years, which may also extend to a life  imprisonment sentence, but in this case the life sentence extends to the natural life of the person,  and shall also be liable to fine. The circumstances enumerated under section 64(2) are:  

(a) being a police officer, commits rape: 

(b) being a public servant, commits rape on a woman; 

(c) being a member of the armed forces deployed in an area by the Central Government or  a State Government commits rape in such area; 

(d) being on the management or on the staff of a jail, remand home or other place of custody  established by or under any law for the time being in force or of a women’s or children’s  institution, commits rape on any inmate of such jail, remand home, place or institution; 

(e) being on the management or on the staff of a hospital, commits rape on a woman in that  hospital; 

(f) being a relative, guardian or teacher of, or a person in a position of trust or authority  towards the woman, commits rape on such woman; 

(g) commits rape during communal or sectarian violence; 

(h) commits rape on a woman knowing her to be pregnant; 

(i) commits rape, on a woman incapable of giving consent; 

(j) being in a position of control or dominance over a woman, commits rape on such  woman; 

(k) commits rape on a woman suffering from mental illness or physical disability; (l) while committing rape causes grievous bodily harm or maims or disfigures or  endangers the life of a woman;  

(m) commits rape repeatedly on the same woman. 

Moreover, under Sections 65(1) & 65(2), if a man commits the act of rape against a woman  who is under sixteen years of age and twelve years of age respectively, he will be subjected to  rigorous imprisonment for minimum of 20 years, which may also extend to a life imprisonment  sentence, but in this case the life sentence extends to the natural life of the person, and shall  also be liable to fine. In this case, the amount fine should be reasonable to meet the medical  expenses and rehabilitation of the victim, and the fine will be paid to the victim directly. 

3.1 Sexual Intercourse by Husband upon His Wife During Separation

Under Section 67 of BNS 2023, If a man has sexual intercourse with his wife, who is living  separately for the time being, under a decree of separation or otherwise, he shall be subjected  to rigorous imprisonment for a minimum of 2 years, which may extend to 7 years, and shall  also be liable to a fine. The status of Marital Rape is, unfortunately still legal except in  exceptional cases like the scenario this section portrays. 

Notable Case Law: Ruth Manorama v. Union of India, 2022 

3.2 Sexual Intercourse by a Person in Authority 

Under Section 68 of the Sanhita, whoever, being in a position of authority or in a fiduciary  relationship, a public servant, 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 on the management of a hospital or being on the staff of a hospital,  abuses such position or fiduciary relationship to 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  for a minimum of five years, but which can extend to ten years, and shall also be liable to fine. 

3.3 Sexual Intercourse by Employing Deceitful Means, etc. 

Whoever, by deceitful means or making promise to marry to a woman without any having any  actual 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 up to ten years and shall also be liable to fine, under Section 69 of the Sanhita. 

3.4 Gang rape 

Under Section 70 of the Bhartiya Nyaya Sanhita 2023, if a woman is subjected to rape by one  or more persons constituting a group or acting together with a common intention, each of  those persons shall be declared to have committed the offence of rape. For this act, each of  them shall be punished with rigorous imprisonment for a minimum of 20 years, which can extend to life imprisonment sentence, and in this scenario, life sentence shall mean  imprisonment for the remainder of that person’s natural life, and with a fine. Provided that  such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the  victim, and such fine shall be paid to the victim directly.

Where a woman under eighteen years of age is raped by one or more persons constituting a  group or acting together with a common intention, each of those persons shall be declared 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. Provided that such fine shall be just and reasonable to meet the medical expenses and  rehabilitation of the victim, and such fine shall be paid to the victim. 

4. CRIMINAL FORCE AND ASSAULT AGAINST WOMEN 4.1 Assault or criminal force with intent to outrage her modesty 

Under Section 73 of the Sanhita, any person who assaults or inflicts criminal force upon any  woman, intending to outrage or has the knowledge that by inflicting such force would result  in outraging her modesty, shall be punished with imprisonment of either description for a minimum of 1 year, which may extend to five years, and shall also be liable to fine. 

4.2 Sexual Assault 

Under Section 74 of BNS 2023, if a man commits any of the following acts— 

∙ Makes physical contact and advances involving unwelcome and explicit sexual  overtures; 

∙ makes a demand or request for sexual favours;  

∙ Shows pornography against the will of a woman;  

∙ Makes sexually coloured remarks 

He shall be guilty of the offence of sexual harassment. As for the punishment is  concerned, any man who commits the offence specified in clause (i) or clause (ii) or  clause (iii) of sub-section (1) shall be punished with rigorous imprisonment up to three  years, or with fine, or with both. 

Moreover, any man who commits the offence specified in clause (iv) of sub-section (1)  shall be punished with imprisonment of either description up to one year, or with fine, or  with both.

4.3 Assault with the intention to disrobe 

Under Section 75 of the Bhartiya Nyaya Sanhita 2023, any person who assaults or uses  criminal force to any woman or abets such act with the intention of disrobing or compelling  her to be naked, shall be punished with imprisonment of either description for a minimum of  3 years, which may extend to 7 years, and shall also be liable to fine. 

4.4 Voyeurism  

Under Section 76 of the Sanhita, whoever watches, or clicks pictures or videos of a woman  engaged in a private act in a situation where she usually would not expect being observed by  anyone, or distributes such image shall be punished – 

∙ on first conviction with imprisonment of either description for a minimum of 1 year,  which may extend to 3 years, and shall also be liable to fine, 

∙ on a second or subsequent conviction with imprisonment of either description for a  minimum of 3 years, which may extend to 7 years, and shall also be liable to fine. 4.5 Stalking 

Under Section 77 of the Sanhita, any man who — 

∙ follows a woman and contacts, or attempts to contact such woman for a personal  interaction despite a clear indication of disinterest by such woman; 

∙ monitors a woman by the use of the internet, e-mail or any other form of electronic  communication, 

commits the offence of stalking. Under the Proviso of Section 77, certain conduct will not  amount to stalking if the man who pursued can prove before the Court that— 

∙ he pursued her to prevent or detect a crime and he had been entrusted with the  responsibility of prevention and detection of crime by the State;  

∙ it was pursued under any law or to comply with any condition or requirement imposed  by any person under any law; 

∙ I the particular case, such conduct was reasonable and justified.  

Regarding the punishment for Stalking, whoever commits the offence of stalking shall be  punished –

∙ on first conviction with imprisonment of either description up to 3 years, and shall  also be liable to fine;  

∙ on a second or subsequent conviction with imprisonment of either description up to 5 years, and shall also be liable to fine. 

5. OFFENCES RELATING TO MARRIAGE 

5.1 Dowry Death 

Section 79 of the Bhartiya Nyaya Sanhita describes the offence of Dowry death, which a  prevalent social evil within the Indian Society. It says that, if the death of a woman is caused  by any burns or bodily injury or occurs as an exceptional or unusual situation within seven  years of her marriage and if it can be shown that soon before her demise, she was subjected to  cruelty or harassment by her husband or any relative of her husband for any demand for  dowry, such death shall be called “dowry death”, it shall be presumed that such husband or  relative has caused her death. 

“Dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961. 

Punishment for Dowry Death: Imprisonment for a minimum of 7 years, which may extend  to imprisonment for life. 

5.2 Deceitful Cohabitation 

Section 80 of the Sanhita says that every man deceitfully make any woman who is not  lawfully married to him believe that she is lawfully married to him and makes her cohabit  with him or have sexual intercourse with him, shall be punished with imprisonment of either  description up to 10 years, and shall also be liable to fine. 

5.3 Bigamy 

Under Section 81 of the Sanhita, whoever, despite having a husband or wife living, marries  again with another person other than their current spouse during the life of such husband or  wife, shall be punished with imprisonment of either description up to 7 years, and shall also  be liable to fine.  

Exception—This sub-section does not apply to any person whose marriage with such  husband or wife has been declared void by a Court of competent jurisdiction.

Also, whoever commits the offence of Bigamy under sub-section (1) after concealing from  the person with whom the subsequent marriage is contracted, the fact of the former marriage,  shall be punished with imprisonment of either description up to ten years, and shall also be  liable to fine. 

5.4 Enticing or taking away or detaining with criminal intent married  woman 

Under Section 83, whoever takes or entices away any already married woman, with intent  that she may have illicit intercourse with any person, or conceals or detains any such woman with that intent, shall be punished with imprisonment of either description up to two years, or  with fine, or with both. 

5.5 Cruelty 

Under Section 84 of the Sanhita, whoever, being the husband or the relative of the husband of  a woman, treats the woman with cruelty (physical or mental), shall be subjected to  punishment with imprisonment up to three years and shall also be liable to fine.  

In this section, “cruelty” means— 

∙ any wilful conduct which is 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;  

∙ harassment of the woman where such harassment is to coerce 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. 

6. OFFENCES RELATING TO MISCARRIAGE AND  INJURIES TO UNBORN 

6.1 Causing Miscarriage with Consent 

Under Section 86, whoever causes a woman with child to miscarry with her consent, if such  miscarriage is not caused in good faith to save the life of the woman, shall be punished with  imprisonment of either description up to 3 years, or with fine, or with both. Moreover, if the 

woman is quick with child, shall be punished with imprisonment of either description up to 7  years, and shall also be liable to fine. 

6.2 Causing Miscarriage without Consent 

Under Section 87 of BNS, whoever commits the offence under section 86 without the consent  of the woman, whether the woman is quick with child or not, shall be punished with  imprisonment for life, or with imprisonment of either description up to 10 years, and shall  also be liable to fine.  

6.3 Death Caused by Miscarriage 

Under Section 88, whoever, to cause the miscarriage of a woman with child, does any act  which causes the death of such woman, shall be punished with imprisonment of either  description up to 10 years, and shall also be liable to fine. Where the act referred to is done  without the consent of the woman, they shall be punishable either with imprisonment for life,  or with the punishment specified in said section. 

6.4 Act done to prevent child from being born alive or to cause it to die  after birth 

Under Section 89 of BNS, any person before the birth of any child does any act to thereby  prevent that child from being born alive or cause it to die after its birth, if such act is not done in good faith to save the life of the mother, be punished with imprisonment of either  description up to ten years, or with fine, or with both.  

7. EXPOSURE AND ABANDONMENT OF CHILD 7.1 Exposure and abandonment of child under twelve years 

Under Section 91 of BNS, whoever is the father or mother of a child under the age of twelve  years, or having the care of such child, exposes or leaves such child in any place to wholly  abandon such child, shall be punished with imprisonment of either description up to seven  years, or with fine, or with both.

7.2 Concealment of birth by secret disposal of dead body 

Under Section 92, anyone who secretly buries or disposes of the dead body of a child whether  such child die before or after or during its birth to intentionally conceal the birth of such  child, shall be punished with imprisonment of either description up to two years, or with fine,  or with both.  

7.3 Hiring, employing or engaging a child to commit an offence 

Under Section 93 of the Sanhita, whoever hires or employs any child below the age of  eighteen years to commit an offence shall be punished with imprisonment of either  description or fine provided for that offence as if the offence had been committed by such  person himself. 

7.4 Procuration of child. 

Under Section 94, if anyone by any means, induces any child below the age of eighteen years  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 sexual intercourse with another person  shall be punishable with imprisonment up to ten years, and shall also be liable to fine.  

7.5 Kidnapping or abducting child under ten years with intent to steal  from its person.  

Under Section 95 of BNS, whoever kidnaps or abducts any child under the age of ten years  intending to take any movable property from the person of such child dishonestly, shall be  punished with imprisonment of either description up to seven years, and shall also be liable to  fine. 

7.6 Selling and Buying child for purposes of prostitution, etc. 

According to Section 96, anyone who sells, rents, hires, or otherwise disposes of a child  under the age of eighteen with the knowledge that the child will eventually be used for  prostitution, illicit sexual relations, or any other illegal and immoral purpose, or who knows  that it is likely that the child will eventually be used for any of these purposes, faces up to ten  years in prison of any kind in addition to a fine.  

Section 97 of the BNS states that anyone who purchases, hires, or otherwise obtains  possession of a child under the age of eighteen with the knowledge that the child will be used 

for prostitution, illicit sexual relations, or any other illegal and immoral purpose at any age, or  who knows it is likely that the child will be used for any of these purposes at any age, faces a  minimum sentence of seven years in prison of any kind, with a maximum sentence of  fourteen years, as well as a fine.