Section 375 : A man is said to commit “rape” if he –
- 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
- 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
- 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 do so with him or any other person; or
- 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.
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.
Exception 1. A medical procedure or intervention shall not constitute rape.
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 section consists of the following-
- Sexual intercourse by a man with a woman.
- The sexual intercourse must be under circumstances falling under any of the seven clauses of Section 375.
- Sexual intercourse. – To constitute this offence sexual intercourse by a man with a woman is necessary. A ‘man’ is defined by section 10 of the Code as a male human being of any age. Thus a boy above 12 years of age is capable of committing rape under this section, whereas a boy below 12 but above 7 years of age enjoys a qualified immunity.
In Ram Kripal Slo. Shyam Lal Charmakar v. State of Madhya Pradesh,’ the victim had gone to field to collect grass. On her way back accused obstructed her and proposed for sexual intercourse. On her refusal accused forcibly committed sexual intercourse. The evidence of victim and medical evidence confirmed fact of penetration of his male organ. It was held that in case of offence of rape penetration of male organ in female organ is a sine qua non which was satisfied in this case and hence conviction of accused for offence of rape was proper.
- Sexual Intercourse Under Following Circumstances
- Against her will.-Clause (1) of this section operates where the woman is in possession of her sense and therefore, capable of consenting. It was held in State of Maharashtra v. M.N. Mardikar 1991, that the right of privacy is included in right to live as guaranteed by Article 21 of the Constitution and a woman of easy virtue is entitled to privacy as and when she likes. She is fully entitled to protect her person if an attempt is made to violate it against her wish.
- Without her consent. -This clause operates where a woman is insensible whether because of the influence of drink or drugs or any other cause, or is so imbecile that she is incapable of giving any rational consent. Consent of the woman must have been obtained prior to the act. It would be no defence that the woman consented after the act.
Every act done “against the will” of a woman, is done without her consent but an act done ‘without the consent’ of a woman is not necessarily “against her will’.
If a girl does not resist intercourse in consequence of misapprehension, this does not amount to a consent on her part. In a case a medical practitioner had sexual intercourse with a girl of 14 years who had gone to him for medical advice. It was found that the girl did not resist because of a bona fide belief that the doctor was treating her medically, the doctor was guilty of rape.
In Uday v. State of Karnataka 2003, accused expressed love and promised to marry the prosecutrix on a later date. Prosecutrix was quite aware that they belonged to different castes and proposal of their marriage will be opposed by their family members. Yet prosecutrix started cohabiting with the accused consciously and became pregnant. On a charge for rape the Court held that the consent given by the prosecutrix for cohabitation cannot be said to be given under misconception of fact i.e., a promise to marry but because she also desired for it. She had freely, voluntarily and consciously consented to have sexual intercourse with the appellant not only on belief of promise for marriage but because of their deep love with each other.
- With her consent where consent is obtained by putting a woman in fear of death or hurt. – The fear which prompts a woman to give her consent must be of the kind stated in clause (3) of this section, i.e. consent must have been obtained by putting a woman in fear of death or of hurt.
- Fourth clause.- In Bhupinder Singh v. Union Territory of Chandigarh, complainant, Manjit Kaur was employed as a clerk in a society. She was daily commuting from Ambala to Narsingh Garh. Bhupinder Singh was employed in State Bank of India, Patiala at Chandigarh. He used to come office of complainant daily and thus developed intimacy with her and asked her to marry without disclosing that he was already married. She agreed to the proposal. They married in Gurdwara after exchanging garlands before holy Granth Sahib in 1990. At that time one Sohan Singh husband of her cousin sister was also present. Thereafter she started cohabiting with Bhupinder. She became pregnant but accused got her aborted against her wishes in 1991. She again became pregnant in July 1993. On 6-3-1994 when she had gone to rose garden, she met Devinder Kumar Bansal and Vinod Sharma, who were friends of her husband. They told Manjit Kaur that Bhupinder was already married with one Grinder Kaur and was having children as well. On coming back to her residence she asked Bhupinder about previous marriage but he left for Patiala on the pretext of attending some training course. Later she gave birth to a female child on 16-4-1994. But Bhupinder did not turn-up. She made a complaint to police and a case was registered under Section 420/376/498-A, I.P.C. In this case consent for co-habitation was given by Manjit Kaur under the belief that Bhupinder was her husband. Accused was held guilty of rape because prosecutrix married accused without knowledge of his first marriage.
It was also held that delay in lodging complaint by prosecutrix cannot, in any event, wash away the offence because consent given under belief that accused is her husband is no consent. Therefore, Supreme Court refused to interfere with the order of conviction passed by High Court.
Hence where the marriage with the complainant was void because the accused was already married and has a living spouse , he was held to be guilty of rape.
- Fifth clause Sexual intercourse with idiot or drunken person. -Where a man had carnal knowledge of a girl of imbecile mind, and the jury found that it was without her consent, she being incapable of giving consent from defect of understanding, it was held that this amounted to rape. Where the accused made a woman quite drunk, and whilst she was insensible violated her person, it was held that this offence was committed.
These cases will now fall within the mischief of the fifth clause to section 375, IPC, 1860.
- –Sexual intercourse with a woman with or without her consent when she is under 18 years amounts to rape.
The prosecutrix left her mother’s house and joined the accused because her mother has turned down the proposal of her marriage with the accused on the ground that she was too young. While she was with the accused he had sexual intercourse with her against her will. The act of intercourse with the prosecutrix will be covered by this clause.
A, a minor girl, aged 15 years having been rebuked by her mother leaves her house. At railway station she meets ‘B’ who takes her to his house, provides her clothes, money and ornaments at his house and has sexual intercourse with the girl with her consent. In this case since the girl has left her guardianship voluntarily and met B at the railway station who took him to his house, B is not liable for kidnapping from lawful guardianship. But B will definitely be liable for committing the offence of rape even though sexual intercourse was committed with the consent of the girl because the girl was a minor and could not give a valid consent in view of clause (6) of section.
The girl being below 16 years of age is not competent to give a valid consent.
The Criminal Law Amendment Act 2013
Based on the recommendations made by the Justice Verma committee , the criminal law amendment Act 2013, came into effect from 3 February 2013. The criminal Law amendment act 2013, made amendments to the Cr PC, 1973, Indian Evidence Act, 1872 and the IPC, 1860.
The Criminal Law (Amendment) Act, 2013 expanded the definition of rape and substituted new sections for old sections such as sections 370, 375, 376, 376A, 376B, 376C and 376D. The Criminal Law (Amendment) Act, 2013 also amended existing sections as well as created new offences in the IPC, 1860, such as:
- Public servant disobeying direction under law (section 166A)
- Punishment for non-treatment of victim (section 166B)
- Voluntarily causing grievous hurt by use of acid, etc. (section 326A)
- Voluntarily throwing or attempting to throw acid (section 326B)
- Sexual harassment and punishment for sexual harassment (section 354A)
- Assault or use of criminal force to woman with intent to disrobe (section 354B)
- Voyeurism (section 354C)
- Stalking (section 354D)
- Punishment for repeat offenders (section 376E)
Other Provisions which was inserted are :
- Consent of woman of unsound mind or under intoxication is not to be considered valid defence.
- Burden of Proof of innocence on accused – Section 114 A was inserted in The Indian Evidence Act, 1872 vide Criminal Law Amendment) Act 43 of 1983.
- Prohibition of disclosure of the identity of the victim – Section
228A IPC added vide Criminal Law (Amendment) Act 43 of 1983.
- Persistent Vegetative State – A new section 376 A has been added vide Criminal Law (Amendment) Act 13 of 2013. When an injury caused to the victim results in death of the women or causes women to be in a persistent vegetative state, then the accused shall be liable for imprisonment for a term which cannot be less than 20 years or may extend to imprisonment of life or remainder of that persons natural life or till death.
- Trial in Camera – Section 327 CrPC 1973 has been amended vide Criminal Law (Amendment) Act 13 of 2013, to the effect that the inquiry into and trial of rape or an offence under section 376, section 376A, section 376B, section 376C or section 376D of the Indian Penal Code shall be conducted in camera.
- Custodial Rape – Section 376C, IPC comprise a group of sections that create a new category of offence, known as custodial rape which does not amount to rape because in such cases the consent of the victim is obtained under compelling circumstances. (Substituted by Criminal Law (Amendment) Act 13 of 2013)
- Intercourse with wife during judicial separation – Section 376 B IPC inserted vide Criminal Law (Amendment) Act 13 of 2013 makes sexual intercourse with one’s own wife without her consent under a decree of separation punishable, with a minimum of 2 years that extend to 7 years.
- Minimum punishment for Rape – This provision has been made more stringent vide Criminal Law (Amendment) Act 13 of 2013.
- Character assassination of prosecutrix prohibited – A ‘Proviso clause’ to section 146 of the Indian Evidence Act, 1872 inserted vide Criminal Law (Amendment) Act 13 of 2013 has disallowed to put questions about prosecutrix character in cross-examination.
The altered definition increasing the age of consent to 18 is also significant for it makes any form of penetration as set out under the section with any girl less than 18 years of age to constitute rape. In a matrimonial setting, it would not have resulted in rape if the woman was still less than 18 and above 15 so long as there was consent by virtue of Exception 2 contained in the section.
But the decision of the Supreme Court in Independent Thought v VOL 2017, has held the provision to be unconstitutional in so far it relates to girl between ages 15 to 18. Now the Exception 2 has to be read as ‘Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age is not rape.
Hence as envisaged under Exception 2 of the Section 375, Sexual intercourse by a man with his wife under 15 years of age is rape whether, it has been done with or without her consent. Such a check was necessary to restrain men from taking advantage of their marital rights prematurely. No man can be guilty of rape on his own wife when she is over 15 ears on account of the matrimonial consent she has given.