Consent of Minor Irrelevant Under BNS: Analysis of Sections 63 & 65(1)
Shivaji Rathore 29 March 2026
The Bharatiya Nyaya Sanhita, 2023 (BNS) has brought significant clarity to offences relating to sexual crimes, particularly in cases involving minors. A crucial legal principle reiterated under the new framework is that consent of a minor has no legal validity in determining the offence of rape.
A recurring question before courts has been whether a minor victim’s statement claiming that she willingly accompanied the accused and engaged in a physical relationship can negate the offence of rape.
Section 63 defines rape and clearly includes situations where the victim is below the legally prescribed age. The provision makes it explicit that age of the victim is a determinative factor, irrespective of alleged consent.
Section 65(1) prescribes punishment for rape, particularly emphasizing aggravated circumstances, including cases involving minors.
Exception 2 to Explanation 2
Even when read with exceptions and explanations, the law does not recognize consent of a minor as valid consent.
Judicial Interpretation
The Court, in its observation (Para 30), of the Judgment held that:
“Even if the victim, aged seventeen years, states that she voluntarily accompanied the accused and engaged in a physical relationship, such an act would still constitute rape if she falls within the statutory age defined under Section 63.“
This interpretation reinforces a settled principle of criminal law statutory protection overrides perceived consent.
Important Legal Principle
A person below 18 years is considered a minor. Consent of a minor is legally immaterial. Any sexual act with a minor automatically falls within the definition of rape under Section 63 BNS.
Practical Implications:- Defence of Consent Not Available
Accused persons cannot rely on the argument that the minor consented.
Strict Liability Nature:-Â The offence operates almost as a strict liability offence concerning age.
The provision aims to safeguard minors from exploitation, even in cases of apparent willingness.
The Bharatiya Nyaya Sanhita, 2023 strengthens the legal framework protecting minors by unequivocally stating that consent of a minor is no consent in the eyes of law. Courts continue to uphold this principle to ensure that statutory protections are not diluted by subjective interpretations of consent.
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Meta Description
Learn how Sections 63 and 65(1) of the Bharatiya Nyaya Sanhita, 2023 treat consent of minors. Courts clarify that consent of a minor is legally invalid in rape cases.
Case Details:-
NAZIR HUSSAIN AND OTHERS
Vs.
THE STATE OF ASSAM
( Before : Mridul Kumar Kalita, J. )
AB/446/2025
Decided on : 02-06-2025
