Published On: June 06, 2026
Authored By: Trisha Chakraborty
Heritage Law College, Kolkata
Abstract
Chapter V of the Bharatiya Nyaya Sanhita (BNS), 2023, titled “Of Offences against Women and Children,” marks a fundamental shift in the Indian criminal justice system. By aggregating all crimes against women and children into a single cohesive chapter, the BNS enhances legal accessibility and embraces a victim-centric approach. It introduces stringent provisions including stricter penalties, longer terms of imprisonment, and mandatory fines.
The chapter explicitly criminalises sexual intercourse obtained through deceitful means, and covers acts intended to outrage the modesty of women, sexual harassment, voyeurism, and stalking. It consolidates provisions on dowry deaths, bigamy, and cruelty by a husband or in-laws, introducing a bifurcated statutory definition of “cruelty” that encompasses both physical and psychological harm. It further addresses offences against child safety, such as the abandonment of children and the procuration, selling, and buying of children for the purposes of prostitution.
Key legislative changes include the introduction of stricter penalties — mandating life imprisonment or the death penalty in cases of gang rape of a woman under 18 years of age — an increase in the age threshold for minority from 15 to 18 years, and the adoption of gender neutrality in certain offences such as voyeurism and the procuration of children.
Nevertheless, Chapter V remains tethered to the colonial-era Indian Penal Code through critical legislative gaps: most notably, the retention of the marital rape exception, a gender-neutrality deficit for victims, and the potential for misuse of certain provisions.
I. Introduction
The Bharatiya Nyaya Sanhita (BNS) was officially enacted on December 25, 2023, and came into force on July 1, 2024. This pivotal shift from the 163-year-old Indian Penal Code (IPC) seeks to replace a colonial-era code with a contemporary, citizen-centric legal framework. This article critically analyses the consolidation of criminal offences against women and children under Chapter V of the BNS — a chapter positioned at the very forefront of the code, signalling a significant departure from the scattered provisions of the IPC toward structured, purposive consolidation.
The transition has, however, sparked considerable debate. While the BNS introduces meaningful legislative advancements — such as the criminalisation of sexual intercourse obtained through “deceitful means” under Section 69 and stringent penalties for offences against minors — it simultaneously retains certain colonial legacies, most notably the marital rape exception. This article analyses the significant changes in definitions, punishments, and judicial interpretations, exploring the BNS’s potential to safeguard vulnerable groups in a rapidly evolving social landscape.
II. Overview of the Bharatiya Nyaya Sanhita (BNS), 2023
The BNS is a codified substantive criminal law consisting of 20 chapters and 358 sections, compared to the IPC’s 23 chapters and 511 sections. Section 2 of the BNS introduces several key definitions — including “child” (defined as a person below the age of 18 years) and gender-inclusive terms recognising transgender individuals — neither of which appeared in Section 8 of the IPC. Section 2 further defines “document” to include digital and electronic records.
While the BNS largely retains the structure of the IPC, it incorporates significant modifications: the introduction of community service for petty offences, increased penalties, and the removal of provisions struck down by courts. Crimes that were formerly ambiguous or governed by special legislation are now distinctly classified — including terrorism (Section 113), mob lynching (Section 130(2)), sexual intercourse by deceitful means (Section 69), and snatching (Section 304), now recognised as an offence distinct from simple theft.
III. Structural Prioritisation of Chapter V
Chapter V of the BNS is structurally prioritised to emphasise the protection of women and children. Sexual offences, causing miscarriage, subjecting a woman to cruelty, and all offences specifically affecting these vulnerable groups are consolidated into a single chapter, improving legal clarity and accessibility.
Under the colonial-era IPC, offences against the state were foregrounded, reflecting the primary concern of protecting the ruling class. By contrast, the BNS places the dignity and safety of women and children at the centre of the criminal justice framework — a clear signal of the legislature’s intent to transition from a colonial, state-protective model to a victim-centric one.
IV. Redefining Consent and Deception
In the transition from the IPC to the BNS, the concepts of “consent” and “deception” have been fundamentally restructured to provide legal clarity between rape — sexual intercourse without consent and through physical force — and fraudulent inducement.
As stated in Explanation 2 of Section 63, consent means an “unequivocal voluntary agreement” communicated through words or conduct, and the absence of physical resistance does not imply consent to the sexual activity. Consent is further rendered invalid if obtained through coercion, or where the victim is unable to understand the consequences of the act by reason of unsoundness of mind, intoxication, or the administration of stupefying substances.
A critical legislative development is the creation of Section 69, which explicitly criminalises sexual intercourse by deceitful means as an offence distinct from rape. This includes making fraudulent promises of marriage, employment, or promotion, or concealing one’s identity, where the accused had no intention of honouring such promises. The offence carries a maximum sentence of 10 years’ imprisonment and a fine.[5]
V. Protection of Modesty and Privacy
The BNS’s treatment of modesty and privacy reflects a transition from a morality-based framework to one increasingly grounded in the constitutional right to privacy and digital dignity — moving beyond the realm of physical touch.
While Section 228A of the IPC prohibited the naming of victims, Section 72 of the BNS further strengthens this protection by explicitly providing that any print or publication capable of identifying the victim is punishable with imprisonment of up to 2 years and a fine. A more stringent provision has also been introduced penalising the publication of court proceedings without prior permission.
Section 74 of the BNS removes judicial discretion for the offence of outraging the modesty of a woman and mandates a minimum sentence of 1 year, extendable up to 5 years, plus a fine. This ensures that violations of modesty and privacy are no longer treated as minor or compromisable transgressions, but as serious criminal violations.
On the question of voyeurism, Section 77 clarifies that the dissemination of images depicting a woman engaged in a private act — without her consent to dissemination, even where she had consented to the image being taken — constitutes a punishable offence. This underscores the principle that secondary consent is essential, and that a woman retains ownership over the dissemination of her image.
Section 79 further provides that words, gestures, or acts intended to insult the modesty of a woman or to intrude upon her privacy constitute a penal offence. In contemporary application, this provision has been interpreted to encompass digital privacy, thereby extending protection to a woman’s personal and online space.
VI. The “Child” as a Distinct Legal Entity
The BNS consolidates the concept of “child” into a distinct legal category with specialised protections, replacing the scattered and inconsistent age thresholds found across various IPC provisions.
The most significant development is the introduction of a unified definition under Section 2(3) of the BNS, which defines a child as any person below the age of 18 years. This provides clarity absent from the IPC, which employed differing age thresholds across different sections.
Section 95 is a particularly significant provision: it establishes that hiring, employing, engaging, or using a child for sexual exploitation is a criminal offence. It further provides that where an adult uses a child as an instrument to commit a criminal offence, the adult shall be prosecuted as if he had committed the offence himself. This provision is designed to dismantle the organised networks that exploit the most vulnerable members of society.
Chapter V also abolishes graduated punishments based on the age of the minor and treats all victims under 18 with equal severity. Section 70(2) mandates life imprisonment or the death penalty in cases of gang rape of a woman below 18 years of age. For other rape offences, Section 64 provides for a minimum sentence that may extend up to 10 years, calibrated to the severity of the offence.
A further reform is the BNS’s use of the term “child” to encompass both minor girls and boys, extending protection from procurement to sexual intercourse. Additional provisions address the imprisonment of parents or guardians for the abandonment of a child under 12 years of age, kidnapping or abducting a child under 10 years with intent to steal from the child, and the selling and buying of children for prostitution.
VII. Cruelty and Marriage
Marriage in India has long been a battleground between traditional personal laws and criminal statutes of colonial origin. The shift from IPC Section 498A to Sections 85–86 of the BNS represents an attempt to decolonise the matrimonial legal framework.
The bifurcation of the offence of cruelty — with the act defined in Section 85 and its statutory meaning supplied by Section 86 — signals a transition from the recognition of purely physical marital harm to an acknowledgement of psychological trauma as a criminal violation. Section 86 explicitly defines cruelty to include any wilful conduct likely to drive a woman to suicide or to cause grave injury, whether physical or psychological. It also extends to harassment of a woman or her relatives to coerce the fulfilment of unlawful demands for property or valuable security.
Marriage contracted through deceitful means — with intent to cohabit or engage in sexual intercourse without the existence of a lawful marriage — is a punishable offence carrying a term of imprisonment of up to 10 years and a fine. While bigamy is already a criminal violation, Section 82 specifically provides that concealing a prior marriage in order to contract a subsequent one constitutes a distinct penal offence.
Section 87 further provides that kidnapping, abducting, or inducing a woman to compel her into marriage — through abuse of authority, compulsion, or by seducing her to illicit intercourse — is punishable with imprisonment of up to 10 years and a fine.
VIII. Legislative Lacunae
While Chapter V is presented as a paradigm shift toward a victim-centric justice system, a critical analysis reveals structural continuities and legislative omissions that tether it firmly to its colonial lineage.
Retention of the Marital Rape Exception
The most glaring omission in the BNS is the retention of the marital rape exception. Exception 2 to Section 63 explicitly provides that sexual intercourse or sexual acts by a man with his own wife, without her consent, do not amount to rape if the wife is above 18 years of age — effectively insulating husbands from rape charges. This retention reflects the presumption that a woman’s consent to sexual intercourse is irrevocably given at the time of marriage. Critics rightly observe that this exception stands in direct contradiction to the BNS’s own definition of consent as an “unequivocal voluntary agreement.”
Failure of Gender Neutrality for Victims
While the BNS adopts a gender-neutral approach with respect to perpetrators in certain offences — such as voyeurism (Section 77) — it remains rigidly gender-specific when defining victims of sexual harassment (Section 75), rape (Section 63), and stalking (Section 78). The Explanation to Section 63 defines a rape victim exclusively as a “woman,” leaving a significant legal vacuum for men and transgender individuals who may be victims of non-consensual sexual acts and who would, in practice, have to rely on Section 115 — which addresses the voluntary causing of grievous hurt — as an inadequate substitute.
Potential Misuse of Section 69
The criminalisation of sexual intercourse through deceitful or fraudulent means under Section 69 carries a risk of criminal weaponisation. Critics argue that even relationships that were genuinely consensual at their inception may be retrospectively reframed as criminal violations — treating what was initially a sincere, if ultimately unfulfilled, promise as evidence of fraudulent intent from the outset.
IX. Judicial Pronouncements
Vipin Kumar v. State of U.P.
In this case, the accused sought to quash charges under Section 69 BNS, pleading that the relationship was consensual and that the victim was aware of his marital status. The Allahabad High Court dismissed the application, holding that a married man who enters into a sexual relationship under the guise of a promise of marriage engages in conduct that is deceitful from its very inception.
Deepesh Jain v. State of M.P.
This case establishes a key judicial precedent on the stringent application of Section 69 of the BNS. The accused had concealed his marital status and established a sexual relationship with the victim, thereby vitiating her consent through fraud. The Madhya Pradesh High Court (Indore Bench) denied anticipatory bail, holding that the concealment of an existing marriage, combined with the resulting pregnancy of the victim, constituted deceit sufficient to sustain the charge.
Moitra v. Sharma (2024–25)
This case marks a notable application of Section 79 of the BNS, which penalises words, gestures, or acts intended to outrage the modesty of a woman. An FIR was registered against Trinamool Congress MP Mahua Moitra for allegedly derogatory remarks posted on the social media platform X concerning the Chairperson of the National Commission for Women, Rekha Sharma.
Manisha Pande & Ors. v. Abhijit Iyer Mitra (2025)
An FIR was registered against political commentator Abhijit Iyer Mitra over the alleged use of derogatory and sexually coloured remarks directed at Manisha Pande and other women journalists associated with Newslaundry on the social media platform X. The Delhi High Court observed that the content of the impugned tweets prima facie disclosed the commission of cognizable offences under Sections 75(3) and 79 of the BNS, relating respectively to sexually coloured remarks and outraging the modesty of women.
X. Conclusion
Chapter V of the Bharatiya Nyaya Sanhita (BNS) represents a significant departure from the colonial-era Indian Penal Code (1860). It claims to have achieved a victim-centric approach while simultaneously retaining critical legislative gaps: most notably, the marital rape exception, the absence of gender neutrality for victims of sexual offences, and the risk of criminal weaponisation of Section 69 — a concern well illustrated by the judicial pronouncements discussed above.
The transition from the IPC to the BNS is, nonetheless, a commendable effort to modernise the Indian criminal justice system. The consolidation of offences against women and children under a single, prominently positioned chapter, together with the introduction of clearer definitions, enhanced penalties, and expanded protections for minors, signals genuine legislative intent. The ultimate measure of this transformation, however, will lie not in the architecture of the statute but in its consistent and equitable application by courts across the country.
References
[1] ‘The Bharatiya Nyaya Sanhita (2023): A Comprehensive Guide for UPSC Aspirants’ (Plutus IAS, 16 February 2026) https://plutusias.com/the-bharatiya-nyaya-sanhita-2023-a-comprehensive-guide-for-upsc-aspirants accessed 19 April 2026.
[2] Manisha Pande & Ors v Abhijit Iyer Mitra CS(OS) 332/2025 (Delhi High Court, 21 May 2025).
[3] Vipin Kumar and Others v State of UP and Another Application U/S 528 BNSS No 45399 of 2025 (Allahabad High Court, 23 February 2026).
[4] Ankit Kumar, ‘Mahua Moitra’s “pajamas” remark on women panel chief Rekha Sharma sparks row’ India Today (Noida, 7 July 2024) https://www.indiatoday.in/india/story/mahua-moitra-derogatory-remark-women-panel-chief-rekha-sharma-pajamas-2563517-2024-07-07 accessed 22 April 2026.
[5] Anshul Sharma, ‘Section 69 BNS: False Promise of Marriage Analysis’ (Khemka & Associates, 30 July 2024) https://www.khemkaassociates.com/post/section-69-bns-false-promise-of-marriage-analysis accessed 23 April 2026.
[6] Bharatiya Nyaya Sanhita 2023 (India).
[7] Indian Penal Code 1860 (India).
