IPC 366 in the new BNS 2023

If you have been named in an FIR or notice under this section, the section number alone does not decide the outcome — the facts, the evidence and the procedure do. Many cases turn on procedural lapses, bail strategy and the exact ingredients of the offence.

This provision covers kidnapping or abducting a woman to compel her into marriage or into illicit intercourse. Under the BNS it sits at Section 87, and it carries ten years — considerably more than ordinary kidnapping, because the purpose is what aggravates it.

What the section requires

For the offence to be made out, these ingredients have to be established:

• the person concerned was a woman
• the accused kidnapped or abducted her, or by criminal intimidation, abuse of authority or another method of compulsion induced her to go from any place
• the act was done 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 so forced or seduced

What changed from the IPC

The offence and the punishment are carried over from IPC 366 without substantive change: imprisonment of either description which may extend to ten years, together with a fine. The BNS placed the provision within the chapter dealing with offences against women and children rather than among the general kidnapping provisions, which reflects its subject matter more accurately than the IPC's arrangement did.

How this section is distinguished from related offences

The purpose is what separates this section from ordinary kidnapping under Section 137, which carries seven years and requires no particular purpose. It is also wider in an important respect: it extends beyond kidnapping and abduction to inducement by criminal intimidation, abuse of authority or any other method of compulsion, so a woman induced to leave through pressure rather than force is within the section. Where the woman is a minor, the kidnapping provisions apply in addition. Where the purpose was trafficking, Section 143 applies and is more severe. Where sexual offences followed, the provisions at Sections 63 to 70 apply independently and generally govern the outcome.

How the case proceeds

The offence is cognizable and non-bailable. The investigation centres on the purpose, which is what elevates the offence, and purpose is almost always established circumstantially rather than directly. Where the case arises in the context of a marriage arranged against the woman's wishes, her own statement is the central evidence and the circumstances in which it was recorded are examined closely.

Evidence that usually decides these cases

Purpose is established circumstantially, from what preceded and followed the taking: arrangements made for a marriage, the involvement of others, travel and accommodation records, and communications indicating what was intended. The woman's own statement, and the consistency of her successive statements, is the central evidence, and where she is an adult her account of whether she left voluntarily is generally decisive. Call records and messages between the parties before the departure establish whether there was compulsion or a consensual arrangement. Where family opposition to a relationship preceded the complaint, evidence of that opposition and of its timing is invariably led by the defence.

How courts approach sentencing

Imprisonment of either description which may extend to ten years, together with a fine. Where sexual offences are charged alongside, they generally govern the outcome, since their minimum sentences are higher.

Defences that commonly apply

Absence of the specified intent is the principal defence, reducing the matter to the general kidnapping provision where the person taken was a minor, or to no offence at all where she was an adult who left voluntarily. Establishing that the woman was an adult and acted of her own free will is a complete answer, and it is supported by her own statement, by communications preceding the departure and by evidence of an existing relationship. Where the complaint was made by family members opposed to a relationship, and particularly where it followed a marriage or an elopement, the sequence of events and the woman's own position are what the case turns on. Where age is in issue, the same considerations apply as in kidnapping cases.

How a case under this section typically progresses

The case begins with a complaint, frequently from family members, followed by tracing and recovery and the recording of the woman's statement, which is the decisive event in most of these cases. Where she is an adult and states that she left voluntarily, proceedings frequently end at that stage or are quashed. Where the matter proceeds, a charge sheet follows and the case moves to trial. Habeas corpus petitions are common in this area and are often heard before the criminal case develops.

Documents worth gathering early

Preserve complete message threads and call records between the parties covering the period before the departure, in original form, since they establish whether there was compulsion or a consensual arrangement. Where a marriage took place, obtain the marriage certificate and the records of the ceremony. Where age is in issue, obtain the birth certificate, school records or matriculation certificate. Keep any evidence of family opposition to a relationship and of its timing relative to the complaint. Travel, transport and accommodation records fix movements. Where a habeas corpus petition or any other proceeding is pending, keep those papers with the criminal file.

Note on bail and cognizability. Whether an offence is cognizable, and whether it is bailable, is set by the First Schedule to the Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, not by the BNS section itself. Because that classification decides whether police can arrest without a warrant and how bail is approached, check it for your specific section with an advocate rather than relying on a general summary.

If you have been named under this section

The intent is the whole case. Kidnapping or abduction without the purpose the section specifies falls under the general provisions with a lower maximum, and establishing the absence of that purpose is the principal line of defence. Where the woman is an adult who left voluntarily, the absence of compulsion — force, criminal intimidation, abuse of authority or any other method — removes an essential ingredient, and the communications between the parties are usually what establishes it. Cases in this area frequently arise from family opposition to a relationship, and the sequence in which the complaint was made relative to that opposition is significant.

Common misunderstandings

"Only physical force is covered."
The section extends to inducement by criminal intimidation, abuse of authority or any other method of compulsion, so force is not required.

"It applies only to minors."
It applies to a woman of any age. Where she is a minor, the kidnapping provisions apply in addition.

"The marriage taking place is necessary."
It is not. The offence is complete on the kidnapping, abduction or inducement being done with the required intent or knowledge.

"An adult leaving voluntarily can still be a victim."
Not without compulsion. Where an adult woman left of her own free will, the element of compulsion or inducement by the specified means is absent.

Related BNS sections

• BNS 87 — Kidnapping or abducting a woman to compel her marriage
• BNS 137 — Kidnapping (IPC 363)
• BNS 138 — Abduction
• BNS 143 — Trafficking of persons (IPC 370)

Which code applies to your case

The Bharatiya Nyaya Sanhita 2023 replaced the Indian Penal Code 1860 with effect from 1 July 2024, and the change is not retrospective. The date the offence is alleged to have been committed decides which code governs it. An offence alleged to have occurred on or after 1 July 2024 proceeds under the BNS. An offence alleged to have occurred before that date continues to be investigated, tried, appealed and punished under the IPC, even where the FIR was registered later. Cases from the transition period frequently cite both numbering systems, which is why the old section number remains worth knowing.

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General information for understanding the IPC→BNS change, not legal advice. The BNS restructured many offences — confirm the exact section, sub-section and punishment with a licensed advocate.