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Sexual Offences under the IPC-Section 375-377

Sex related offences has been recognized as a crime by almost all cultures and religions throughout the history. It is a grave infraction of human rights of an individual. Sexual offences competently take the shape of sexual violence which causes drastic irreparable damage to the physical and mental well-being of the victim. The human race may have attained development materially and professionally but it is being achieved to the deterioration of the integrity and temperament of a human being.

This write up will cover the extent of the provisions correlated to sexual offences under the Indian Penal Code, 1860[1]. The main rationale of this article is to understand the phenomenon of sexual offences in terms of forces operative in the process of their commission, their enormity, prevalence along with their elimination and control measures that can be adopted.

Introduction
Man is the first end result of evolution who is competent of controlling his evolutionary fate. An individual is composed of five sense organs, sentiments and intelligence through which he perceives other beings around him and demonstrate himself. Sometimes in communal relationships among two sexual categories, these qualities of a human being are misused in a way that can be offensive. In maximum cases, women have to bear the brunt of these offences.

Law may tell us in detail what are sexual offences but the exact definition remains indeterminate. Sexual offence can be defined as any unwanted sexual activity whether on the physical, intellect or mental degree of consciousness which leads to suppression of will of the victim by invading personal space where victim feels coerced or manipulated and which involves infliction of pain. (kissing, groping, intercourse etc.) It can also be considered as an assault in which adults or children are induced without their consent. The victim goes through numerous injuries that can include high risks of damage to the reproductive health; sexually transmitted diseases; acute depression; suicide etc.

Analysis of sexual offences under Indian Penal Code

Chapter XVI section 375 to 377 of the Indian Penal Code,1860 deals with sex related offences.[2]

Rape

Of all the crimes, rape is the most obnoxious one which violates bodily integrity and honor of a woman. The word “Rape” has its origin from a Latin term “rapio” which means “to seize”. Precisely it means forceful seizure. Section 375[3] deals with the provisions related to rape.

As stated by Section 375, Indian Penal Code, A man is said to commit rape if he penetrates his penis through any extent into the vagina, mouth, urethra or anus of a woman or inserts any object, to any extent, or any part of a body other than the penis into the vagina, urethra and anus of a woman or put in his mouth into the vagina, urethra or anus of a woman or makes her to do so with him or any other person, under the circumstances falling under following descriptions:
  • Opposed to her will.
  • In the absence of her consent.
  • With consent when it has been acquired by putting her or any other person related to her under the fright of death or hurt.
  • With consent obtained under the misconception of fact that the man was the person she was lawfully married to.
  • When the consent is given by reason of unsoundness of mind or intoxication of any stupefying or unwholesome substance.
  • When the girl is minor, no matter the consent is given or not.
  • When she is not able to provide her consent.

Further, the section states that penetration and insertion of object can be “ to any extent”[4] including even slightly and partially[5]. The physical injuries to the private part of the woman are not essential[6]. The only fact of penetration is sufficient to hold a person guilty.[7] Due to increase in instances of rape of a minor, revisions were made to the rape laws for inclusion of sections 376AB, 376DA, and 376DB.[8]

Marital Rape
It has been recognized as an exception to rape in the definition of rape stating that:
Sexual intercourse or sexual activities with a man with his own wife not being below fifteen years of age, is not rape”.[9]

A wife is presumed to deliver relentless consent to have intercourse with her husband after setting foot into marital relations. The Supreme Court and various High Courts of India are currently flooded with writ petitions challenging the constitutionality of this anomaly, and in a recent landmark judgment, the Supreme Court criminalized non-consensual sexual contact with spouse between fifteen and eighteen years of age.[10] Marital Rape is an inhuman practice and an infringement of article 14 and 21 of the Constitution which should be struck down.

Punishment for Rape
The punishment for the offence is given in Section 376[11]. Whoever, commits rape, shall be punished with rigorous incarceration of either description for a term which shall not be less than ten years[12], but which may extend to incarceration for life, and shall also be accountable to fine.

Some entities in Section 376 are mentioned individually, to be specific, public servants, police officers, member of armed forces, member of jail staff management, hospital management staff, relative or guardian, are also subjected for rigorous imprisonment for not less than ten years which can be extended up to life imprisonment and will be liable for fine.

Rape cases that leads to death or permanent vegetative state of the victim becomes more serious. The offender will then be punished for rigorous imprisonment for a term which shall not be less than twenty years, which may extend to life imprisonment.[13] Whoever has sexual intercourse with his spouse, living separately, without her consent, shall be punished with imprisonment of either for a term which shall not be less than two years but which may extend to seven years, and shall also be accountable to fine.[14]

The legislation have made separate provision for the sexual intercourse by a person in authority which means if there is a fiduciary relationship between a man and a woman, where one person is in a position to dominate the other like the relationship between a doctor and a patient, or by the manager of a jail of a custody, where a man who has committed the offence is liable to the rigorous imprisonment for not less than 5 years which can extend up to 10 years. and is incorporated under Section 376C of the IPC. Repeat offenders[15] shall be imprisoned for life, or with death.

Gang Rape
When a woman is raped by one or more persons constituting a group or acting in furtherance with the common intention and each of those persons shall be liable for the imprisonment for not less than twenty years[16] which can be extended to imprisonment for life and they would also be liable for fine and the fine will be reasonable to the medical expenses of the victim and the rehabilitation of the victim.[17]

Case Studies

Bhanwari Devi Case

Vishaka vs. State of Rajasthan and Ors.[18] was a leading light case concerning the protection of women against sexual harassment at workplace. Supreme Court in this case held that sexual harassment of a woman at a workplace would be in contravention of her fundamental rights of gender equality and right to life and liberty under Articles 14, 15, 19 and 21 of the Indian Constitution. This verdict laid down various gender impartiality guidelines free from harassment in both public and private employment.

Later, the government enacted Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013[19] which superseded the Vishaka Guidelines declared by the Supreme Court of India.

Nirbhaya Gang Rape Case

This rape case which occurred in 2012, was considered as the rarest of the rare case. Various amendments were introduced in the rape laws after this heinous incident. The accused was punished with death penalty by the trial court which was also upheld by the high court. The Supreme Court relying on the dying declaration of victim, had affirmed the death penalty[20] and opined that “where a crime is committed with extreme brutality and the collective conscience of the society is dismayed, courts must award capital punishment.[21]

Mathura Rape Case

Tuka Ram And Anr vs State of Maharashtra[22] was a custodial rape case, where a girl was raped in Desai Gunj Police Station in Maharashtra. The Supreme Court held that sexual intercourse in this case does not constitute rape. Due to the rationale behind this judgement, huge public outcry took place which led to the Criminal Law( Second Amendment) Act, 1983.[23]

Unnao Rape Case

In this case, a minor was raped and murdered by a politician in 2017. Later, an attempt to kill her by a pre-planned car accident was made which led to serious injuries to the victim and death of two relatives. Supreme Court indulged into the matter and said, the victim’s testimony was unblemished truthful and had been proved to be of “sterling quality” to arrive at the conclusion that she was sexually assaulted by Sengar.[24]

Kathua Rape Case

In this case an eight-year-old girl was abducted, raped and murdered in Kathua, J&K[25]. After this incident “The Protection of Children from Sexual Offences Act (POCSO)” was amended and severe punishments were imposed[26]. Three accused were held for rape and punished with life imprisonment, other three accused were held for destroying evidence and were awarded five-year imprisonment.[27]

Unnatural Offences
Whoever by choice has carnal intercourse in opposition to the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term up to ten years, and shall also be liable to fine.[28] This section criminalises voluntary carnal intercourse against the order of nature. It came into existence during the British era where the expression “against nature” comprised of homosexual activities. Unnatural Offences also include sodomy, bestiality and sterilization.

A number of incidents had led to vulnerability of transgender, transsexual, gays, lesbians, asexual, bisexuals as a result of section 377.[29] Later, looking at all the aspects, Naz Foundation India Trust challenged the constitutionality of Article 377 considering Article 14, 15, 19 and 21 before the High Court of Delhi. Delhi High Court in 2009 ruled that Section 377 cannot be used to punish sex between two consenting adults - this violates the right to privacy and personal liberty under Article 21 of the Constitution.[30]

In Suresh Koushal Judgement[31] , Supreme Court of India reversed this verdict of Delhi High Court. Several Curative petitions were filed challenging this Supreme Court Judgement.

Navtej Singh Johar & ors vs Union of India[32]

This landmark case challenged the constitutional validity of section 377. A five bench on September 2018, unanimously struck down the controversial Section 377 Of the Indian Penal Code. The Judgement[33] Decriminalises consensual sexual intercourse among the LGBT individuals. The court kept hold of bestiality, intercourse with minors and non-consensual sexual activity within the bounds of section 377.

Conclusion: Need of the hour
Sexual crime is a blot on the face of any civilised society and is universally condemned. It reflects the mindset of a patriarchal dominant era. To avoid these crimes, the reformatory attitude of society towards victims is necessary and the task can only be accomplished when it is shared with all the wings of criminal justice system. The need of the hour is to raise awareness among people so that the crimes do not proliferate.

Marital rape should be criminalized and strict actions should be taken in this regard. Rehabilitation should be carried out so that the victim can recover physically, psychologically and socially. Decriminalization of consensual sexual intercourse among the LGBT individuals may lead to more rape cases.

Though section 377 has been struck down, no provision has been made to deal with gay rape cases. Provisions regarding the protection of the LGBTQ community should be incorporated in the Indian Penal Code. With the changing scenario, laws should also be revised time to time so as to avoid any injustice.

End-Notes:
[1] Act No. 45 of 1860, https://www.indiacode.nic.in/bitstream/123456789/4219/1/THE-INDIAN-PENAL-CODE-1860.pdf
[2] The Indian Penal Code, 1860, ss 375-377.
[3] The Indian Penal Code, 1860, s 375.
[4] The Indian Penal Code, 1860, cl(a),(b).
[5] State of Uttar Pradesh v. Babulnath, (1994) 6 SCC 29.
[6] Fateh Singh v. State of Haryana (2009) 15 SCC 543.
[7] Madan Gopal Kakkad v. Naval Dubey (1992) 3 SCC 204.
[8] The Criminal Law(Amendment) Act, 2018
[9] The Indian Penal Code, 1860, s 375.
[10] Independent Thought v. Union of India, (2013) 382 SCC (2017)
[11] The Indian Penal Code, 1860, s 376.
[12] The Criminal Law(Amendment) Act, 2018, s 4.
[13] The Indian Penal Code, 1860, s 376A.
[14] The Indian Penal Code, 1860, s 376B.
[15] The Indian Penal Code, 1860, s 376E
[16] The Criminal Law(Amendment) Act, 2013
[17] The Indian Penal Code, 1860, s 376D.
[18] JT 1997 (7) SC 384
[19]The Sexual Harassment of Women at Workplace(Prevention, Prohibition, and Redressal) Act,2013, http://legislative.gov.in/sites/default/files/A2013-14.pdf
[20] Mukesh & Anr v. State( NCT of Delhi) & Ors(2017) 6 SCC 1
[21] Mukesh & Anr v. State( NCT of Delhi) & Ors(2017) 6 SCC 1, para 511.
[22] AIR 1979 SC 185
[23] Act. 46 of 1983.
[24] Special correspondent, Kuldeep Sengar held guilty in Unnao minor rape case, The Hindu, Dec. 16,2019, https://www.thehindu.com/news/national/other-states/kuldeep-sengar-convicted-in-unnao-rape-case/article30319473.ece#:~:text=A%20Delhi%20court%20on%20Monday,Pradesh's%20Unnao%20in%20June%202017.&text=The%20court%20said%20the%20victim's,was%20sexually%20assaulted%20by%20Sengar.
[25] Mohd. Akftar v. state of Jammu and Kashmir 2018(9) Scale 181
[26] Criminal Law( Amendment) Act, 2018
[27] Express Web Desk,’Kathua rape case verdict HIGHLIGHTS: Three main accused sentenced to life imprisonment, 5-year jail term for others’, The Indian EXPRESS ,New Delhi, June 10, 2019. https://indianexpress.com/article/india/kathua-rape-murder-case-verdict-live-updates-5772581/
[28] The Indian Penal Code, 1860, s 377.
[29] Geetanjali Misra, Decriminalising Homosexuality in India, 17 R.H.M. 20-28, 21 (2009), http://www.law.hku.hk/hrportal/wp-content/uploads/file/2009-decriminalisation_homosexuality_india.pdf
[30] Naz Foundation v. Government of NCT of Delhi, WP(C) No. 7455/2001
[31] Suresh Kumar Koushal & Anr vs Naz Foundation & Ors (2014) 1 SCC 1
[32] AIR 2018 SC 4321
[33] Navtej Singh Johar & ors v. Union of India, AIR 2018 SC 4321  

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