Author: Nishtha Tiwari, II year of B.A.,LL.B.(Hons.) from University of Allahabad (SSKGDC)
Objective of Section 375
Section 375 of the Indian Penal Code discusses rape and what actions, if committed by a man, can subject him to punishment under Section 376 of the Code. Section 375 was in the IPC at the time of its enactment, but its scope was expanded following the Criminal Law Amendment of 2013. Previously, penetration of a woman's vagina, urethra, anus, or mouth with the penis was considered rape. It is currently considered rape if a male inserts any object or other part of his body into a woman's vagina, urethra, anus, or mouth.
What Old provision says
Old provision of rape only contained Penile/Vaginal Penetration as rape 375.
Sakshi v. Union of India - This case filled by an NGO named 'Sakshi' petitioned to the supreme court to include all kinds of forcible penetration and not just penile/vaginal Penetration under the definition of rape.
Court did not change the definition but said that this is a serious issue and the parliament Should address this problem, parliament widened the definition.
NOW RAPE DEFINED AS - (new provision)
-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.[i]
Explanation 1 -For the purposes of this section, "vagina" shall also include labia majora.
Explanation 2- Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
Case regarding Explanation 2
Tukaram v. State of Maharashtra' (AIR 1979 SC 185)
Also known as (Mathura Bai Rape Case). This was a case in context of 'custodial rape'. Mathura, a Harijan girl developed intimacy with a boy, Ashoka. Mathura had been kidnapped by Ashok, according to her brother's report to the police station. After sometime, Mathura was taken to the police station and statement was recorded . One of the accused took her into the washroom and raped her in spite of her protests. The court held that no marks of injury was found on the body of the girl after the incident and this indicates that the intercourse was a peaceful affair and the girl's story was entirely made up.
Therefore, no offence is brought against the accused.
(A)The result of this Judgement was the Criminal Law (Amendment) Act, 1983
Major changes in this context of rape through this amendment were:
Burden of proof of proving that consent was present lies on the accused.
Custodial rape brought in purview of rape under 376 (2)
Section 376A-376D were added.
Disclosing identity of victim punishable (added Section 228A in IPC)
Exceptions to Section 375
Exception 1 -A medical procedure or intervention shall not constitute rape.
Case- lillu v. state of haryana
In a judgment delivered on April 9, 2013, a Division Bench of Justices BS Chauhan and FM Kalifulla observed that the “two finger test” used in cases of rape, “violates the right of rape survivors to privacy, physical and mental integrity and dignity.”[ii]
Exception 2 -Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape. (This is not applicable anymore as SC has declared that the age is now 18 in this context too) - Independent thought vs. union vs India -2017
The Criminal Law (Amendment) Act, 2013, increased the age of consent for sexual intercourse from 16 to 18 years. But the Exception 2 mentions non-consensual sex of a husband with his wife and for that, the age is above 15 years.
Amendment and Cases
Nirbhaya Case/2012 Delhi Gang Rape Case
Resulted in Criminal law (Amendment) Ordinance,2013
Also called the Nirbhaya Act, Anti-Rape Act
Based on the recommendations of 'Justice Verma Committee'
Increased punishments for rape (not death penalty though)
Increased punishments for other sexual offences like Voyeurism, acid attacks etc.
More stringent provisions for filing rape complaints.
Bill of Rights for women which gives dignity and respect to women over their choices of sexual relationships and for their sexual autonomy.
Kathua Rape Case 2018
Resulted in Criminal Law (Amendment) Ordinance, 2018
Main objective was to give harsher punishment to perpetrators of rape, especially for the rape of minor girls below 16 years and 12 years.
Minimum Punishment of rape increased from 7 years to 10 years. Gang Rape of a girl below 16 years is imprisonment for the rest of the life. Rape of a girl below 12 years of age has minimum 20 years punishment and up to death penalty.
Provisions for speedy investigations and trial and appeals (Cr.P.C)
Investigation - 2 months
Trial - 2 months
Disposal of Appeal - 6 months
No provision for anticipatory bail for a person accused for rape or gang rape of a girl below 16 years of age.
If different punishments in IPC and POCSO (The protection of children from sexual offences act, 2012), then the punishment which is higher will be given.
Difference between Will and Consent
Rape is committed 'against her will' AND 'without her consent'
Act done 'against her will' is wider than 'against her consent' Act done against someone's will is always without their consent.
But vice versa is not true i.e., forced Act done could be with the consent but against the will.
Like a girl who is intoxicated, or a girl under mistake of fact gives her consent for sexual intercourse but that does not mean that she was willing to do that.
Difference between Outraging Modesty of women and Rape
The main difference is the act done and to differentiate we have to read 375(a) - 375(d)
If acts falling under any of the scenarios mentioned from 375(a) to 375(d) then it will be rape.
Attempt to do any of the acts falling under 375(a) to 375(d) shall be attempt to rape.
375 Rape -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.
Conclusion
Sec 375's definition of rape excludes rape committed on men and transgender people, as well as rape committed by women and transgender people. Even Indian law does not even recognise the term "marital rape." As a result, we can argue that crime does not discriminate based on gender, and neither do offenders.
There are a lot of rape instances that aren't even reported to the authorities. The reason for this is that women are often unaware of their rights, and victims are often hesitant to come forward and report crimes many victims don't come forward because of society, social disapproval and shame -fear that's why accused gets more confidence to commit such offences. The victims are not at blame, and they do not deserve to be shunned by society; instead, people should encourage the victims in their efforts to establish a new life.