As we all know rape is considered as a heinous crime in our society. Section
375 of Indian Penal Code defines the offence of rape and its essentials, while
section 376 prescribes punishment with death or life imprisonment.
Under section 375 a man commits rape upon a woman under following
- Against her will
- Without her consent
- When her consent is obtained by threat or fear of injury to person she
is interested in.
- When consent is obtained by fraud or misconception of fact person
representing to her as husband.
- With her consent when obtained by reason of unsoundness of mind or state
- With or without consent when the age of woman is under 18.
- When she is not able to communicate her interest
After the Nirbhaya Gang Rape case:
there have been demand from jurists,
social workers to amend the existing laws the old laws did not provide any
stringent punishment to the rapist. So the law commission decided to amend
existing procedural and substantive rape laws of the country.
Section 376A was added and onus to prove innocence was shifted on the accused
and identity of the victim was said to be kept confidential by the courts.
Custodial and rape during the judicial separation were also included in the
other words the whole rape law was changed.
The Supreme Court in many cases interpreted the section 375 one of the landmark
case Dileep Kumar v/s.; State Of Bihar
demarcated Against her will
means sexual intercourse despite resistance whereas Without her consent
means absence of proper deliberation and intelligent case.
The court also held that a false promise to rape does not amount to work if the
accused is able to show that his intention was not dishonest from the beginning.
Also section 90 cannot be clothed in language to convict the accused section 90
deals with consent given under misconception.
Uday vs. State of Karnataka:
It was the first time Supreme Court held that consent given on false promise to
marry cannot come under section 375. It would depend on facts and circumstances
of each case like the age, social and educational background of that victim, her
status in the society would also be taken in to consideration.
Whereas in State of Uttar Pradesh vs. Naushad
held that from the
beginning accused did not have intention to marry the victim so the prima facie
evidence is against the accused. In my opinion there is a difference between
mere breach of promise and false promise to marry the intention will be inferred
from the conduct of accused
In Gurmit Singh vs. State of Punjab
while holding the accused liable
under section 376 consent and submission are not of same meaning. A consent
given under force or duress vitiate a valid consent.
It should be noted that penetration is sufficient to constitute the offence of
Some landmark cases are Raghubir Singh vs. State of Himachal Pradesh, Mohan
Singh vs. National territory of Delhi
After reviewing the landmark cases I have reached the conclusion that sections
375 is a complete rode and section 90 holds no application in the offence of
rape. Therefore the law makers have rightly amended the existing rape laws which
were repugnant with the social conditions. There have been major developments in
the field of law like the minimum punishment for the rape is not less than 7
years. We can only hope from the society that they will be bound by the rules