Critical Analysis of the offence of Rape under IPC by - Sameedha Reddy
Critical
Analysis of the offence of Rape under IPC
Authored
by - Sameedha Reddy
INTRODUCTION
According to Article
21 of the Indian Constitution, rape violates the victim's fundamental
right. Because it violates the victim's body, mind, and privacy, it is the most
morally and physically abhorrent crime in society. A rapist destroys and
defiles a vulnerable female's soul, whereas a murderer destroys the victim's
physical form. Rape uproots the individual who is subjected to it's entire
life. In no way can a rape victim be considered an accomplice. Rape leaves a
permanent mark on the victim's life, so a rape victim is held in higher regard
than an injured witness. Rape is a heinous crime against society that violates
the victim's human rights. Rape, as the most despised crime, has devastating
consequences. Rape, as the most despised crime, strikes at a woman's highest
honour and offends both her esteem and dignity. It causes psychological and
physical trauma to the victim, leaving indelible marks on her. Consent and will
are two essential ingredients when performing any act. The ingredients have
been interpreted differently by different courts. The plain meaning of consent
states that the act must be voluntary and willing. Many authors and researchers
continue to confuse willingness and consent. Through various court decisions,
this article explains the clear distinction between will and consent in
relation to Section 375 of the Indian Penal Code. When considering Section 375
of the Indian Penal Code, both clauses must be satisfied in order to avoid
liability for rape. As time passed, cultural beliefs and norms shifted, resulting
in a significant shift in the definition of rape as a crime. The Indian rape
laws are based on English common law, and the anti-rape laws were first
mentioned in the Indian Penal Code in 1860. However, the seventeenth-century
jurist Sir Matthew Hale's description of rape as "an accusation easily
made and hard to prove, and harder to be defended by the party accused, though
never so innocent"3 demonstrates the colonial courts' prejudiced attitude
toward victims. Because the women were assumed to be lying, the trial courts
focused on proving the victim's credit rather than the accused's guilt. 4 The
focus on her previous sexual relations or her virginity determined the outcome
of the case. Eventually, the anti-rape laws
strengthened over the decades because of some brutal cases that led to several
major amendments in laws. The need for change in laws gathered momentum with
the growth of the Women's Movement which brought about awareness and change in
attitude of the society. This paper discusses several cases namely the Mathura
rape case, the Delhi rape case, the Unnao and Kathua rape case which led to the
criminal law amendments of 1983, 2013, 2018 respectively. It also analyzes the
recommendations made by the Justice Verma Committee, which was constituted after
the Delhi rape case to suggest reforms in the anti-rape laws. It looks closely
into the several changes made in the definition and punishments of anti-rape
laws. It focuses specifically on the changes brought about by these amendments
in the rape laws under the Indian Penal Code
DEFINITION
OF RAPE:
Rape comes from the Latin
term rapio, which means "to seize." As a result, rape literally means
"forced seizure." In common parlance, it refers to "the
ravishment of a woman without her consent, by force, fear, or fraud" or
"the carnal knowledge of a woman by force against her will." In other
words, rape is a violation of a woman's private person with violence.
Section 375 of the Indian Penal Code
defines rape.
Taking note of the
inadequacy of the law of rape and its failure to protect the rights of innocent
victims against the heinous crime, the Parliament extensively amended the law
of rape in 1983 and 2013 to make it more realistic. Act 43 of 1983 changed the
heading of Chapter XVI of the Indian Penal Code, 1860, from "Of Rape"
to "Sexual Offenses." Rape has been expanded to include non-penile
penetration, though it remains gender-specific when committed against a female.
Old
Provision of S.375:
S.375 “Rape.” A man is
said to commit” rape” who, except in the case hereinafter excepted, has sexual
intercourse with a woman under circumstances falling under any of the six
following descriptions:
v First -
Against her will.
v Secondly
- Without her consent.
v Thirdly
- 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.
v Fourthly
- 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
Fifthly -
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.
v
Sixthly -
With or without her consent, when she is under sixteen years of age.
-
Explanation
- Penetration is sufficient to constitute the sexual intercourse necessary to
the offence of rape.
-
Exception -
Sexual intercourse by a man with his own wife, the wife not being under fifteen
years of age, is not rape.”
The Supreme Court held
that the provision is illegal insofar as it affects girls between the ages of
15 and 18. Exception 2 must now be read as follows: "sexual intercourse or
sexual acts by a man with his own wife who is not under the age of eighteen are
not rape." Section 375 of the Indian Penal Code, 1860, is a
gender-specific provision for the protection of women, as rape can only be
committed by a man. The Section is divided into two sections: Clauses (a) to
(d) in the first section simply state what acts performed by a man with a woman
would constitute rape if committed in any of the seven situations specified in
the second section. While Section 375 permits consenting penetrative actions
(including oral and anal intercourse), Section 377 prohibits the same acts of
penetration regardless of consent. As a result, there is a legal schism. The
prohibition on consensual sexual relationships in Section 377 is based on no
recognised or logical grounds. Adults' consensual sexual expression and
intimacy in private cannot be considered "carnal intercourse against the
natural order." It should be noted that the provision has now been
repealed following the Supreme Court's landmark decision in Navtej Singh
Johar vs. Union of India, 2018
After
Amendment S.375 and its clauses
Under Section 375, a man is said to commit rape if
he;
1.
Penetrates his penis into a woman’s
vagina, mouth, urethra, or anus to any amount, or forces her to do so with him
or anybody else; or
2.
Inserts any object or portion of the
body, other than the penis, into the vagina, urethra, anus, or any other part
of her body, or forces her to do so with him or another person; or (commonly
known as digital rape)
3.
Manipulates any part of a woman’s body
to produce penetration into the vagina, urethra, anus, or any other part of her
body, or forces her to do so with him or anybody else; or
4.
Applying his tongue to a woman’s
vagina, anus, or urethra, or forcing her to do so with him or another person,
or
5.
Any of the seven clauses laid down
under Section 375 of the Indian Penal Code, 1860. The provision embraced with
seven clauses that majorly lays down circumstances that if takes place, can be
quoted to be amounting to the offence of rape. .
v First
Clause: against her will
If
a man has sexual relations with a woman against her will, it is rape, unless it
falls under one of the exceptions listed in the section. According to the
prosecutrix in
Deelip Singh vs. State of Bihar, 2005,
the initial illegal conduct was carried out despite her opposition, but she
later became a consenting participant as a result of frequent promises of
marriage. She admitted in the FIR that she gave in to him even before the first
act because of marriage promises. The Supreme Court ruled that her version of
events was untrustworthy and that the charge against the accused was unfounded.
v Second
Clause: without consent
If
a man engages in sexual activity with a woman without her consent, it is rape
under the second clause unless it falls within one of the exceptions listed in
the Section. It should be noted that if the girl claims she did not consent to
the rape while in custody, the court will assume she did not, as stated in the
case of
v Third
& Fourth Clause: passive non-resistance or consent obtained by fraud
According
to the third clause, rape occurs when a woman's consent is acquired by putting
her or anyone she cares about in fear of death or harm, even if the act is done
with her permission. If a girl does not object to intercourse because she is
misled, she does not give her consent. A medical man who was sent for professional
advice by a fourteen-year-old girl was found to have a criminal relationship
with her, and she made no resistance because she believed he was treating her
medically, was found to be guilty of rape. The prosecutrix's submission of her
body out of fear or anxiety is not a consenting sexual act.
In State of Himachal vs. Mange Ram,2000. the Supreme Court held that the fact
of consent can only be determined after a thorough examination of all relevant
circumstances. Clause 4 concerns a rapist who is aware that he is not his
victim's spouse and obtains her consent because she believes he is another man
to whom she is or believes she is lawfully married. In another case,
v Fifth clause: sexual intercourse with insane &
drunken person
According
to the fifth clause of Section 375, acts done with the victim's consent when
she is unable to appreciate the nature and consequences of that to which she
consents due to unsoundness of mind or intoxication, or the administration of
any stupefying or unwholesome substance by the accused directly or through
another, will amount to rape. In
R vs.
William Camplin,1849. it was held that rape occurred when a man had
carnal knowledge of a girl of imbecile mind and the jury found that it occurred
without her consent, she being unable of giving consent due to a defect of
comprehension. This act was committed when the perpetrator made a woman very
inebriated and then violated her person while she was unconscious. These
instances will now fall under the fifth clause of Section 375 of the Indian
Penal Code, 1860.
v Sixth and Seventh clause: With or without her consent, when she is under eighteen years
of age & she is unable to communicate consent.
As per the sixth clause, if the
offensive act is done with or without the consent of the girl and the girl is
under the age of eighteen, it is termed rape. The seventh clause
states that if the offensive act is performed on a woman who was not in a
position to consent at the time of the intercourse, the same will also be
considered to be rape.
Prosecutrix not an accomplice
Following
the incident, a prosecutrix who claims to have been a rape victim is not an
accomplice. There is no rule of law that her evidence cannot be relied on
without material particulars confirmation because she is on a much higher
pedestal than a wounded witness. A woman who is the victim of sexual assault is
not a co-conspirator in the crime, but rather a victim of another's lust, and
thus her evidence does not need to be scrutinised to the same extent as that of
a co-conspirator. According to the Indian Evidence Act of 1872, her testimony
cannot be accepted unless it is corroborated in material particulars. Under
Section 118, she is unquestionably a competent witness, and her testimony must
be given the same weight as that of a victim of physical violence.
Consent
Consent
is defined as an activity performed by a person in a free state of mind.
According to Merriam Webster, consent is a person's act of giving assent and
approval. According to Section 375, consent is defined as an unequivocal
voluntary agreement when a woman expresses her willingness to commit a specific
act through verbal or nonverbal communication. Consent is defined by choice
rather than will. It is necessary to prove consent in order to interpret it:
ü The
person can give consent; and
ü The
person, with his free choice, has accepted the act.
Capacity to Consent
The person is said to be capable of giving valid
consent when:
a)
the person is of sound mind: the person
claiming this right bears the burden of proof. For example, if A agrees to sell
his property to B while in an unsound state of mind and later withdraws from
the agreement, it cannot be enforced because the consent was obtained while he
was not in a sound state of mind.
b)
The individual must have reached the
age of majority: Minors are thought to be incapable of giving consent under the
law. For example, if A and B are in a sexual relationship where B
is a minor girl, though the sexual activity is consensual, it would still
amount to the offence of rape.
Types of Consent
The
definition of free consent is mentioned in Section 90 of the Indian Penal
Code. When a person is put in fear of injury or has a misunderstanding of
facts, consent is not said to be free.
There are two types of
Consent:
-
IMPLIED CONSENT:
It is a type of consent
expressed by the person through actions. Consent can be expressed through
gestures or other nonverbal communication methods. The legal dictionary defines
implied consent as "consent inferred from signs, actions, or facts, or by
inaction or silence." As an example, A owns a firework store. When B
enters his shop, he gives his implied consent to purchase products from him.
-
EXPRESS CONSENT:
It is a type of consent
that can be given either orally or in writing. If it is expressed consent, it
is easier to prove in court. For example, if A asks B to buy a house for him,
and he agrees and says yes, that is expressed consent.
Consent on the Promise of Marriage
Consent
can be expressed or implied, coerced or deceived, freely given or obtained
through deception. Consent is a rational act followed by contemplation, with
the intellect like a balance weighing the good and evil on each side. The
difference between rape and consensual sex is significant, and the court must
carefully consider whether the accused had a genuine desire to marry the victim
or had made a false promise to that effect solely to satisfy his libido, as the
latter falls under the category of cheating or deception. There is a
distinction between simply breaking a commitment and failing to keep a false
promise. As a result, the court must decide whether the accused made a false
promise of marriage early on, and whether consent was obtained after fully
comprehending the nature and implications of sexual indulgence. There may be a
case where the prosecutrix agrees to have sexual intercourse with the accused
due to her love and passion for him rather than solely due to the accused's
misrepresentation, or where an accused was unable to marry her despite having
every intention to do so due to circumstances he could not have predicted or
were beyond his control. Only if the Court finds that the accused's intent was
malicious and that he had hidden motives, as in
Dhruvaram Murlidhar Sonar vs. State of Maharashtra,
can the accused be found guilty of rape. A complaint under Section 375 would be
unworkable if a man and woman were living together, sometimes at her home and
sometimes at the man, and the evidence indicated that it was not a case of
passive submission in the face of psychological pressure, and there was tacit
consent that was not based on any misconception created in her mind. As the
Supreme Court stated in the landmark case of
Uday vs. State of Karnataka,2003. if the
accused's promise is not false and was not made with the express purpose of
seducing the prosecutrix into engaging in sexual acts, the act would not be
considered rape. As a result, if the prosecutrix submits to the accused's
passion because she believes the accused will marry her, such a false act
cannot be considered consensual in terms of the accused's offence.
Where Consent need not be obtained
There
is no need to wait for the person's consent if it is not possible for the
person to give consent and the other person acts in good faith, according to
Section 92 of the Indian Penal Code. For example, if A is suffering from
epilepsy and bleeding, he is unable to consent. Then, if B, a surgeon, operated
without A's consent and A was declared dead during the operation, B cannot be
held liable for his actions because it was an emergency and the patient was
unable to give consent.
Will
The
term refers to the mind's reasoning ability to determine whether or not to
perform an act. 'Will' is defined by Merriam Webster as "something done
with desire or choice." In other words, an act of will is a person's
desire to participate without being pressured or influenced by anyone else. For
example, A instigated B to shoot C, and B willingly agreed and shot C. In this
scenario, B had a clear desire to shoot C, despite the fact that he had a clear
choice to say no.
Act committed against the Will
Will
is an important concept in proving a rape offence. According to Section 375(1),
rape occurs when sexual intercourse is performed against the will of the other
person. The Supreme Court defined the concept in the case of
State of Uttar Pradesh vs. Chhotey Lal,2011.
stating that an act committed by a man against a woman despite her resistance
or opposition.
Law against the Will and without Consent
Section
375 of the Indian Penal Code includes both components: an act committed against
one's will and an act committed against a woman's consent. Rape is mentioned in
this section. Rape is derived from the Latin word "rapio," which
means "to seize," and refers to the ravishment of women without her
consent. In 2013, an amendment to the rape laws was passed to protect the
interests of innocent victims.
Difference between ‘against her will’
& ‘without her consent’
Despite
the fact that the expressions against her will and without her consent may
occasionally overlap, the two expressions in Section 375 Clauses one and two
have distinct connotations and dimensions. Typically, the phrase "against
her will" refers to a man having sexual relations with a woman despite her
protests and refusal. An act of reason, on the other hand, accompanied by
deliberation, would be included in the statement "without her
consent." It should be noted that the courts followed the tests for establishing
consent outlined in Section 90 of the IPC. As per Section 90, a consent is not
such as is intended by any section of this Code if it is given out of fear of
injury or a misunderstanding of facts, and the person doing the act knows, or
has reason to believe, that the consent was given as a result of such fear or
misunderstanding; or if it is given out of unsoundness of mind or intoxication,
and the person doing the act knows, or has reason to believe, that the consent
was given as a result of such fear or misunderstanding; or if the consent is
given by a person who is under twelve years of age.
In Holman vs Queen,2010. It was stated that
willingness must not be required to constitute consent. If a woman giving
consent is reluctant, hesitant, and grudging, but she consciously permits it,
such consent is considered valid. Consent given in protest and tears is still
consent.
ESSENTIALS
OF RAPE
o Against her will;
o Without her consent;
o Consent is obtained by
force or putting a person of her interest under fear of death
o Consent obtained by
misconception
o Consent was obtained when
the person was unsound, intoxicated, or under undue influence
o Women under the age of
eighteen with or without her consent
o A woman who is unable to
communicate her consent
EXCEPTIONS
TO S.375
Section
375 of the Indian Penal Code, 1860 contains two exception clauses, the first of
which states that a medical procedure or intervention shall not constitute
rape, and the second of which states that sexual intercourse or sexual acts by
a man with his own wife, if the wife is not under the age of eighteen, is not
rape.
v Exception
ONE: medical procedure or intervention shall not constitute Rape
A medical procedure or
intervention does not constitute a rape offence. This exception clause states that
any medical intervention against women is not a rape offence in a court of law.
v Exception
TWO: sexual intercourse or sexual act by man with his own wife, the wife not
being under eighteen years of age, is NOT rape
The age limit was raised
from 15 to 18 years by the 1949 Amendment to the Indian Penal Code, 1860. There
may be times when a legal check is required to prevent males from prematurely
exercising their marital rights. This clause will cover the husband's abuse in
such cases. The Supreme Court ruled in Independent Thought vs. Union of India
(2017) that sexual intercourse with a girl under the age of 18 is rape,
regardless of whether she is married or not. According to the Court, Exception
2 creates an unnecessary and artificial distinction between married and
unmarried girl children and has no rational nexus with any specific goal
sought. This artificial distinction violates Article 15(3) of the
Constitution's spirit and ethos, as well as Article 21 of the Constitution. It
also contradicts the idea behind some statutes, such as the girl child's bodily
integrity and reproductive choice.
LANDMARK JUDGEMENT UNDER S.375
TUKARAM AND ANR V. STATE OF MAHARASHTRA
In this case, Mathura was an 18-year-old orphan
girl who was called to the police station on an abduction report filed by her
brother. Mathura was kept late. She was forcefully taken to the toilet and was
raped by a constable Ganpat and Molested by Tukaram they had bottled the door
from inside. In the sessions court the accused were acquainted naming it
as consensual sex. The decision was challenged in the Bombay High court which
reversed the decision distinguishing between consent and passive submission and
claimed that there was no consent and was a mere passive submission therefore
they are liable. In the Supreme Court, they were acquainted with their charges
and claimed that there were no marks and it was a peaceful affair. This
judgment of the Supreme Court was heavily criticized thus after this judgment
in an inquiry it was held that marks in the victim’s body are not
important. Recently the case that shook the whole country is the
Nirbhaya rape case four decades ago the case that shook was the Mathra rape
case. This case highlighted the flows existing in the existing criminal laws. A
criminal law amendment was passed to nullify the effect of the
judgment. Legal Changes
·
Changes were made in Section 376 of the
Indian Penal Code.
·
The Punishment was prescribed to a term not less
than 10 years
CONCLUSION
Women
in India have a high social status, but we still lack strict protections for
them. We have several laws in place to protect their lives, but they appear to
be riddled with loopholes. Rape is considered the most heinous crime against
women, and statistics show that it is extremely common in India. The
distinction between will and consent is significant. The Indian Penal Code
provides a proper definition of consent. On the other hand, the will is still
not well defined. Section 375 of the Indian Penal Code is one of the most
discussed sections due to the increase in the number of rape cases in India in
the last few years have brought significant changes in the section but there
are still quite a few existing flaws that need to be addressed. We have
numerous regulations in place to control such heinous crime, but when it comes
to implementation, we either lack somewhere or must make an effort. As a
result, the crime is interpreted differently, which can result in a miscarriage
of justice. Significant changes are required, which can be accomplished by
changing legislative minds.
BIBLIOGRAPHY
·
Law of Crimes: Ratanlal and Dhirajlal
·
Law of Crimes: S.P Pillai
·
Criminal Law: K.D Gaur
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