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THE NEED FOR BROADENING THE PRINCIPLES LAID DOWN IN SECTION 375 AND 377
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THE
NEED FOR BROADENING THE PRINCIPLES LAID DOWN IN SECTION 375 AND 377
AUTHORED BY - SAMRIDDHI AGGARWAL
1. ABSTRACT
This
research paper investigates the necessity to widen the concepts outlined in
Sections 375[1]
and 377[2]
of the legal frameworks in order to address critical concerns such as marital
rape, necrophilia, and the implementation of gender-neutral laws. This paper
talks about the present definitions of both the sections and further discussed
how these definitions came up from what they were initially. The definitions of
rape and sexual offences has come up a long way from what they were as per
Indian Penal Code, 1860.
This
research paper talks about widening the scope of these sections and discusses 3
major relevant points - Marital Rape, Necrophilia and Gender Neutrality.
Marital Rape and Necrophilia are 2 acts which are not considered as offenses as
per the current provisions of the Indian Penal Code but there is an urgent need
to do so. Gender neutrality is also a major requirement in all such laws or
maintain gender equality and the rights of all citizens. Lastly, the paper
discusses how these changes can be brought about. Overall, this paper advocates
for the expansion of legal principles to include marital rape as a criminal
offence, comprehensive laws against necrophilia or its inclusion in existing
ones along with gender-neutral laws to ensure equal protection for all
individuals regardless of gender or sexual orientation and to suggest
changes.
2. KEYWORDS
Rape,
necrophilia, section 375, section 377, sexual offences
3. Research Methodology
The
research employs a variety of qualitative research methodologies, such as legal
analysis, comparative study, and academic research. This study's methodology
strives to provide a thorough grasp of the subject matter by drawing on current
legal frameworks, case studies, and scholarly perspectives. To get a complete
grasp of the issues associated to marital rape, necrophilia, and gender-neutral
legislation, a thorough assessment of existing literature, including academic
articles, legal statutes, and pertinent case laws, is done. Additionally, a
thorough legal analysis is carried out in order to objectively assess the
provisions of Sections 375 and 377 of the legislative frameworks under
consideration. This entails examining pertinent laws, precedents, judgements,
and legal interpretations in order to comprehend the present scope,
restrictions, and implications of these provisions. When discussing difficult
themes such as marital rape, gender neutral laws and necrophilia, ethical
factors are taken into account. This research methodology takes a multifaceted
approach, combining legal analysis, comparative study, case studies, and expert
interviews to provide a thorough investigation of the topics at hand.
4. INTRODUCTION
a)
Section 375 & Section 377 as
per the Indian Penal Code, 1860:
Section
375 of the Indian Penal Code defines the offence of rape while Section 376
defines its punishment. As per section 375,
“A man is said to commit "rape" if he--
a) penetrates his penis, to any extent, into the
vagina, mouth, urethra or anus of a woman or makes her to do so with him or any
other person; or
b) inserts, to any extent, any object or a part of the
body, not being the penis, into the vagina, the urethra or anus of a woman or
makes her to do so with him or any other person; or
c) manipulates any part of the body of a woman so as
to cause penetration into the vagina, urethra, anus or any part of body of such
woman or makes her to do so with him or any other person; or
d) applies his mouth to the vagina, anus, urethra of a
woman or makes her to do so with him or any other person, under the
circumstances falling under any of the following seven descriptions:
First.
Against her will.
Secondly.
Without her consent.
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.
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.
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.
Sixthly.
With or without her consent, when she is under eighteen years of age.
Seventhly.
When she is unable to communicate consent.”
The definition lays down the exceptions as
well.
Furthermore, Section 377 of IPC reads “Unnatural
offences—Whoever voluntarily has carnal intercourse against the order of
nature with any man, woman or animal, shall be punished with 1[imprisonment for
life], or with imprisonment of either description for a term which may extend
to ten years, and shall also be liable to fine. Explanation—Penetration is
sufficient to constitute the carnal intercourse necessary to the offence
described in this section.”
b)
How did the
present definitions come up about?
The definition of rape was first laid down in
Indian Penal Code, 1860, as most of the other offences. Section 375 of IPC 1860
defined rape focusing on non-consensual sexual intercourse with a woman against
her will. However, this initial definition was quite narrow and
gender-specific. Following this came the Criminal Law (Amendment) Act, 1983[3].
This Act widened the definition of rape to a much larger extend covering areas
such as gang rape and custodial rape. This amendment came after the infamous
Mathura Rape case wherein a 14–16-year-old tribal girl was raped by 2 policemen
inside the police station when she had gone to file a case of her
abduction.
In 2004, in the case of Sakshi vs. Union of India[4],
a public interest litigation was filed in the Supreme Court seeking a ruling
that non-penile penetration should be classified as rape. Though the apex court
dismissed this PIL, the Court’s encouragement to change the definition prepared
the path for the change of law. This case highlighted the significance of
protecting the privacy and identity of rape survivors and emphasized the need
for witness protection measures to ensure access to justice for survivors.
Further amendments came after another infamous
case, namely the Nirbhaya Gang Rape[5]
in 2012. It led to the introduction of the Criminal Law (Amendment) Act, 2013.
This amendment expanded the definition of ‘rape’ as it was and introduced
several key changes to the law. It replaced the term "rape" with
"sexual assault" to include a wider range of non-consensual sexual
acts. It recognized the concept of "genders other than female" as
potential victims of sexual assault. It introduced stringent punishments,
including the death penalty in cases resulting in the victim's death or leaving
her in a persistent vegetative state. It criminalised acts such as acid
attacks, stalking, and voyeurism.
The latest amendment[6]
came in 2018 which focused on strengthening the legal framework to address
sexual offences and ensure the safety of women and children. It introduced the
death penalty for the rape of girls under 12 years of age. It mandated the
completion of rape investigations within a specific timeframe. It also
established fast-track courts to expedite rape trials.
Another notable change was when Section 377 was
abrogated and consensual sexual intercourse between 2 individuals of same-sex
was decriminalised. Section 377 had made such acts of penetration illegal
regardless of consent. This was repealed after the Supreme Court made a
landmark decision in Navtej Singh Johar vs. Union of India[7]
(2018).
Even after all these changed, the definition of
rape still has scope and the need to be broadened.
5.
WHERE
IS THE CHANGE NECESSARRY?
WHAT IS ITS NEED?
I.
Marital Rape
Marital rape is still not considered an “offence”
under Indian laws. As of 2023, over 70 countries have criminalised this act,
yet India isn’t one of them. The law does recognise the said principle in case
the spouse is below 15 years of age. However, why not for adults?
In 2005, the Protection of Women from Domestic
Violence Act, 2005[8]
was passed which does consider marital rape as a type of local violence. As per
this Act, a woman can go to the court and get legal partition from her husband
for marital rape. This act merely established marital rape as a ground for
divorce or legal partition, rather than an offence.
In 2015, the issue of marital rape was bought upon
in the Parliament. It was then that the idea of criminalising marital rape was
dismissed with the view that "marital rape cannot be applied in the
country since marriage was treated as a sacrament or sacred in the Indian
society". However, if this notion is to be held true, shouldn’t the
individuals being involved in such a sacred ceremony be regarded as such by
each other too? The prevalent belief that permission is assumed inside the
institution of marriage creates an environment that ignores couples' autonomy
and bodily integrity. Marital rape needs to be criminalised. Not only is it
against the whole concept of “marriage being sacred”, it is also violative of
the basic rights of a citizen of India.
Fundamental Rights[9]
guarantee all citizens of India the right to privacy[10]
and to live a life of dignity[11].
By virtue of these, women should have the freedom to not engage in sexual acts
with any person they want, be it their husband. Additionally, allowing such a
freedom isn’t just a question of law, but rather also the morality of the
country.
According
to National Family Health Survey – 5 (2019-2021), “Among married women aged
18-49 who have ever experienced sexual violence, 83 per cent report their
current husband and 13 per cent report a former husband as perpetrator.” Among
the 83 per cent of women, a large 84 per cent said that their husbands
“physically forced her to have sexual intercourse with him even when she did not
want to”. [12] Another
issue with the reports showing marital rape or sexual violence by the husband
on the wife is the ‘underreporting’. The NHFS also found that a large number of
wives were unwilling to disclose such information and report the violence.
Thus, this shows the urgent need for reform in case of marital rape.
II.
Necrophilia
Necrophilia refers to a sexual attraction,
fixation, or act involving sexual contact with a dead body. This act is morally
and ethically wrong. It is criminalised in various countries, but India is not
one of them yet again. While hearing a recent case on May 30th[13],
the Karnataka High Court held that having sexual intercourse with a woman’s
dead body will not attract the offence of rape. It was held that this offence
was not punishable under Section 376[14]
of the Indian Penal Code as there is no provision in the IPC for it. Partially
allowing the convict’s appeal in a rape and murder case, a bench of Justices B.
Veerappan and Venkatesh Naik recommended that the Centre should amend the IPC to
protect the dignity of the dead. “It is high time for the Central government to
amend the provisions of Section 377 of IPC '' to include dead bodies of men,
women, and animals, the court said. Additionally, Necrophilia presents a unique
challenge to the Indian legal system, necessitating careful consideration of
consent, morality, and respect for the deceased. While legal measures differ
between jurisdictions, comprehensive legislation expressly addressing necrophiliac
actions is urgently needed. By recognising the inherent violation of dignity
and guaranteeing adequate sanctions for violators, communities can work to
respect the rights of the deceased while also preserving the legal system's
integrity. It must be understood that the act of necrophilia not only
diminishes the dignity of the deceased but also fails to offer proper legal
remedy for their relatives. It violates the deceased and his/her family’s right
to live with dignity. [15]
Necrophilia has seen a major uprising in the recent years. One of the most prominent cases was the gruesome Nithari serial killing[16] case or the Surendra Koli vs State of U.P. case in 2006 wherein after investigation it was found that a businessman along with his servant had killed dozens of children and had sexual intercourse with the bodies afterwards.
In another
horrifying case in 2019, A Bengal serial killer or the ‘Chain Man’ was given
the capital punishment for killing a number of women and raping them. Police
said that Sarkar, who is a married man and has three children, had allegedly
even inserted sharp materials into the genitals of some of his victims after
killing them.[17]
III.
Gender Neutral
Laws
Even after so many changed and amendments in the
past, rape laws remain a law against men in theory. There is an important and
essential need for it to become gender neutral as soon as possible. Section 375
defines rape as “an act committed by man.” Why is it that the society and
justice system still fail to recognise that rape is not limited to any gender
or sex. Recently a lot of awareness is being spread about rapes and sexual
offences being committed against men, not only by other males but by females as
well. It is high-time that the justice system starts accounting for such
instances and provides males with a statutory remedy for such injustices
against them.
Furthermore, the third gender has been given
recognition in India, however they are not safeguarded against sexual offences
or offences such as law, as of today. Additionally,
enacting gender-neutral laws would entail extensive adjustments to legal
definitions, procedures, and educational activities. It must be understood that
it is not easy to implement gender-neutral rules in the context of rape. One
major source of concern is the possibility of abuse or false charges,
particularly in jurisdictions with insufficient legal safeguards and due
process. However, it is critical to address these issues while also
acknowledging that false charges are uncommon and should not be used to
undermine the urgent need for gender-neutral legislation. To enable successful
application and understanding of the new legal framework, considerable legal
reform, training for legal professionals, and awareness campaigns would be
required. It is high time that laws are made more inclusive of all genders with
the increasing social awareness that one has in today’s liberal society.
6. SUGGESTIONS
The Parliament needs to discuss these issues and
work on them as soon as possible, bringing about a much required and needed
change. Moreover, citizens of the country should try to bring in awareness
regarding such issues and any others they deem important.
As of now, Section 375 and other laws relating to
law and sexual offences should be made gender-neutral to begin with so that,
not only females or males, but people belonging to the third gender have remedy
available to them as well in cases of harassment.
Section 377 should be amended to include other
cases of “unnatural sex” as well in case some definition does not fall within
the ambit of ‘rape.’ Offence of ‘Necrophilia’ may not fall under Section 375 directly;
however, it can be included under Section 375. This is because a dead person
cannot essentially give consent and the act cannot be said to be done without
their will as the person does not have any life or decision. Such an act could,
however, constitute the offence of “unnatural sexual intercourse” as given in
Section 377. Furthermore, for marital rape to be decriminalised, Exception 2 of
Section 375 of IPC needs to be removed which clearly states that “Sexual
intercourse or sexual acts by a man with his own wife, the wife not being under
fifteen years of age, is not rape”
7. CONCLUSION
This research work has thrown light on the urgent
need to widen the concepts outlined in Sections 375 and 377 of the legal
system, with a special emphasis on marital rape, necrophilia, and the relevance
of gender-neutral regulations. The definition of rape has changed a lot over
the years but a need for change is still felt. Numerous other aspects relating
to sexual offences are still not covered under this definition and a lot of times,
offenders and criminals walk free due to this unclear definition.
A question we need to ask ourselves here is that
why is that an amendment or change in law comes only after a heinous crime has
been committed? An argument might be that the need for a law on a certain topic
might not be felt until it’s been done but numerous areas have already been
highlighted over the years where a change is required. Marital rape, necrophilia
and rape against men aren’t new crimes. They have happened in the past and are
happening currently as well. We should realise the urgency of changing the
current definition of rape and sexual offences so no criminal can walk free and
no victim can walk unjust. In conclusion, the necessity of broadening the
principles laid down in Section 375 and 377 to meet the evolving needs of
society must be recognised and worked upon by the justice system to ensure
equal protection under the law and safeguard the fundamental rights of
individuals.
In many jurisdictions, marital rape, a horrible
crime that impacts countless people, goes unrecognised and untreated. By
extending Section 375's principles to include marital rape, it is important to
recognise that permission must be freely given in all forms of sexual
encounters, regardless of marital status. This step is critical in fostering
gender equality, individual rights, and delivering justice for marital rape
survivors. Furthermore, the study reveals a worrisome vacuum in regulation
surrounding necrophilia. The lack of concrete regulations addressing this
heinous crime not only diminishes the dignity of the deceased but also fails to
offer proper legal remedy for their relatives. It is critical to expand the
concepts outlined in Section 377 in order to expressly criminalise necrophilia,
recognising it as a violation of the sanctity of the dead and protecting
society norms and values. Furthermore, the importance of gender-neutral laws
cannot be emphasised enough. The current legal system frequently reinforces
gender stereotypes and discrimination. By broadening the gender-neutral
concepts of Sections 375 and 377, the law can offer equal protection and
justice for all individuals, regardless of gender or sexual orientation. Within
the legal system, this action will encourage inclusivity, equality, and respect
for individual rights. Finally, it is clear that the ideas outlined in Sections
375 and 377 regarding marital rape, necrophilia, and gender-neutral laws need
to be expanded. Addressing these critical challenges allows countries to aim
for a legal system that protects human rights, equality, and justice for all.
Legislators, policymakers, and society as a whole must recognise the importance
of change and endeavour to create a legal framework that represents these core
values. Only by implementing significant changes will we be able to secure a
more just and equal society for future generations.
[1] Indian Penal Code, 1860
[2] Ibid.
[3] The Jammu & Kashmir Criminal
Law (Amendment) Act, 1983
[4] 1999 CriLJ 5025, 1999 (5) SCALE
376, (1999) 6 SCC 591
[5] Mukesh & Anr vs State for Nct of
Delhi & Ors on 5 May, 2017,
[6] The Criminal Law (Amendment) Act,
2018
[7] Navtej Singh Johar vs Union of
India Ministry of Law and Justice on 6 September, 2018, AIR 2018 SC 4321; W. P.
(Crl.) No. 76 of 2016; D. No. 14961/2016
[8] Chapter II: DOMESTIC VIOLENCE,
Section 3(d)(ii) “sexual abuse” includes any conduct of a sexual nature that
abuses, humiliates, degrades or otherwise violates the dignity of woman
[9] Part III of the Indian
Constitution, Articles 12-35
[10] Article 21 of the Indian
Constitution
[11] Id.
[12] https://www.thehindubusinessline.com/data-stories/data-focus/marital-rape-most-married-women-are-sexually-abused-by-their-husbands-says-nfhs-data/article65409875.ece
[13] Rangaraju @ Vajapeyi vs State of
Karnataka on 30 May, 2023
[14] Punishment for Rape
[15] Article 21, Constitution of India
[16] AIR 2011 SUPREME COURT 970, 2011
(4) SCC 80, 2011 AIR SCW 3628, AIR 2011 SC (CRIMINAL) 608, 2011 (3) ALL LJ 203,
2011 (4) AIR JHAR R 606, 2011 (4) AIR KANT HCR 32, 2011 (2) CALCRILR 314, 2011
(2) SCC(CRI) 92, 2011 (2) SCALE 490, (2011) 100 ALLINDCAS 132 (SC), 2011
CALCRILR 2 314, (2011) 1 CHANDCRIC 508, (2011) 1 ORISSA LR 917, (2011) 1
DLT(CRL) 607, (2011) 2 CRIMES 56, 2011 CRILR(SC MAH GUJ) 253, (2011) 1
CRILR(RAJ) 253, 2011 CRILR(SC&MP) 253, (2011) 3 MAD LJ(CRI) 606, (2011) 2
RECCRIR 1, (2011) 1 CURCRIR 450, (2011) 2 SCALE 490, (2011) 73 ALLCRIC 446
[17]
https://www.ndtv.com/india-news/bengal-rapist-and-serial-killer-sentenced-to-death-8-more-cases-pending-2258522
Article Information
THE NEED FOR BROADENING THE PRINCIPLES LAID DOWN IN SECTION 375 AND 377
Authors: SAMRIDDHI AGGARWAL
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/01/23
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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