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Section 375 Of IPC: An Overview

The word rape is derived from the Latin term rapio, which means to seize. Thus, it literally means a forcible seizure and that is the essential characteristic feature of the offense. In common parlance, it means intercourse with a woman without her consent by force, fear, or fraud.

It is ‘the ravishment of a woman without consent, by force, fear or fraud’, or ‘the carnal knowledge of a woman by force against her will’. Sexual intercourse with the consent of a girl below the age of sixteen years also amounts to rape.

Ordinarily, rape is a violation, with the violence of the private person of a woman – an outrage by all canons. It is unlawful sexual intercourse by a man with his own wife below the age of fifteen or with any girl below the age of sixteen, or with any other woman above sixteen without her free consent, against her will, or with consent obtained under certain unlawful circumstances.

Rape is not only a crime against the person of a woman (victim), it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into a deep emotional crisis. Rape is, therefore, the most hated crime. It is a crime against basic human rights and is also violates the victim’s most cherished of the Fundamental Rights, namely, the Right to life contained in Article 21 of the Constitution.

Objective Of Section 375:

Section 375 of IPC tells about rape and what actions, if done by a man, can make him liable for punishment under Section 376 of IPC. Section 375 was in IPC from the time of the enactment of this statute but its ambit has been enlarged after the Criminal Law Amendment of 2013. Earlier the penetration of the penis into the vagina, urethra, anus, or mouth of a woman was considered rape.

But now even if the man inserts any object or any other part of the body into the vagina, urethra, anus, or mouth of a woman, it is considered rape.

The objective of Section 375 of IPC can be understood by the words of Justice Krishna Iyer in the case of Rafiq v. the State of UP where he said that the murderer kills the body of a victim but the rapist kills the soul. So, rape can be considered a more serious offense against humankind than murder. Section 375 plays a very important role in bringing to justice the women who are robbed of their souls by those perpetrators

What Is Section 375 Of The Indian Penal Code?

Section 375 of the Indian Penal Code defines rape as "sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation, or fraud or at a time when she has been intoxicated or duped, or is of unsound mental health and in any case, if she is under 18 years of age."

It's Rape If It Falls Under Following Categories

  1. Against her will
  2. Without her consent.
  3. 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.
  4. 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.
  5. With her consent, when, at the time of giving such consent, because 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.
  6. With or without her consent, when she is under sixteen years of age.
Explanation:
Penetration is sufficient to constitute the sexual intercourse necessary to the offense of rape.

The Criminal Law (Amendment) Act, 1983, besides substituting Sections 375 and 376 for the old sections, have added Sections 376- A to 376-D.

Consent Under Section 375

Consent is defined as clear, voluntary communication that the woman gives for a certain sexual act. Marital rape is an exception to giving consent as it is not a crime under the Indian Penal Code, as long as the woman is above 18 years of age.

Ingredients Of The Offence Of Rape:

The following are the essential ingredients of the offense of rape
  1. There must be sexual intercourse with a woman by a man;
  2. Such sexual intercourse should be under any of the following circumstances:
    1. Against her will
    2. Without her consent,
    3. With consent obtained under fear of death or hurt,
    4. With consent given under misconception of the fact that the man is her husband but the man knows that he is not her husband,
    5. Consent given because of unsoundness of mind, intoxication, or under influence of any stupefying or unwholesome substance,
    6. With a woman under 16 years of age with or without consent.

Under the Criminal Law (Amendment) Act, 1983, Section 375 inserted a new clause fifthly dealing with consent because of unsoundness of mind or intoxication, besides the addition of words or any person in whom she is interested in clause thirdly; and thus the scope of Section 375 IPC has been widened.

Exceptions To Section 375

There are two exceptions provided under the section. They are:
  • Exception 1: When there is medical treatment or intervention it shall not constitute rape.
  • Exception 2: When there is sexual intercourse or any sexual act by a husband with his own wife who is above 15 years of age is not considered to be rape.
     

Amendment To Section 375 Of Ipc

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 do so with him or any another person; or
inserts, to any extent, any object or apart of the body, not being the penis, into the vagina, the urethra, or anus of a woman or makes her do so with him or any other person; or
manipulates any part of the body of a woman to cause penetration into the vagina, urethra, anus, or any ~ of the body of such woman or makes her do so with him or any other person; or
applies his mouth to the vagina, anus, the urethra of a woman or makes her do so with him or any other person, under the circumstances falling under any of the following seven descriptions:
  1. Against her will.
  2. Without her consent
  3. 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 hurt
  4. 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.
  5. With her consent when at the time of giving such consent, because 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.
  6. With or without her consent, when she is under eighteen years of age.
  7. When she is unable to communicate consent.
Explanation I: For 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 a 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 I: 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.’

Punishment

Except in certain aggravated situations, the punishment will be imprisonment of not less than seven years but it may extend to imprisonment for life, and shall also be liable to fine. In aggravated situations, punishment will be rigorous imprisonment for a term which shall not be less than 10 years but which may extend to imprisonment for life, and shall also, be liable to fine.

Difference Between Rape (Or Its Attempt) And Indecent Assault (Or Outraging The Modesty Of A Woman)

Assaulting or using criminal force to a woman with the intention to outrage, or with the knowledge that he will thereby outrage, her modesty is indecent assault. Such intention or knowledge is not part of rape or its attempt. An indecent assault may not amount to an attempt to commit rape unless the court is satisfied that the accused had gone beyond the stage of preparation to gratify his lust at all cost.

Where the accused tried to rape the victim but she picked up an ax and caused injuries on him after which he left her and escaped, he was held guilty under section 354. Where, however, the accused had taken off his own trousers and that of the victim, a five and a half-year-old child, and the doctor found fresh redness at the entrance of her vagina but no other injuries while the girl did not feel pain and there were no marks of blood or semen, it was held that the accused had gone beyond indecent assault and was guilty of attempted rape.

Where the accused threw down the victim on the ground, put sand in her mouth, got on to her chest, and attempted to have sexual intercourse but the victim managed to scream which attracted other people on to the spot, it was held that the accused had attempted rape. Mere penetration in the vulva would amount to rape.

But where there was congestion about a quarter of an inch away from the vulva, and before the accused could do anything else the victim was injured and started bleeding, the accused had proceeded far enough but could not succeed in raping the girl, and thus he was guilty of attempt to commit rape under section 376 read with section 511, and not of outraging the modesty of a woman. Where the accused stripped a girl almost naked and was himself lying upon her when she cried for help and was rescued, he was held guilty of attempted rape.

Latest Judgments
Kaini Rajan vs. State Of Kerala
In this case, the prosecutrix alleged that on 17.9.1997 she was forcibly taken and raped by her brother’s friend whom she had known for two years. She stated that she made a hue and cry but was threatened with death and made quiet. However, it was submitted that her cries were not heard by the neighbors.

It was later found that she continued to have consensual relations with the accused after this incident on the promise of marriage. The prosecutrix became pregnant and gave birth to a child in 1998. Accused did not keep his promise to marry her and even disputed the paternity of the child. The prosecutrix then filed a complaint against him.

The Supreme Court found doubt in the version of the prosecutrix as her shouts were not heard by anyone and the report was filed 10 months after the incident. Also, although her family knew the accused’s family, no attempts were made to marry the two by the prosecutrix’s family. All of these cast a doubt on the prosecutrix’s allegations. The Supreme Court acquitted the accused.

Parminder @ Ladka Pola vs. State Of Delhi
In this case, the prosecutrix, a 14-year-old, who had gone to meet her friend who lived near her house, was raped by the friend’s brother and threatened with death if she raised an alarm or narrated the incident to anyone. That evening she narrated the incident to her mother and a complaint was filed against the accused.

The court found that the conduct of the accused at the time of the commission of the offense of rape, the age of the prosecutrix and the consequences of rape on the prosecutrix are some of the relevant factors which the Court should consider while considering the question of reducing the sentence to less than the minimum sentence.

In the facts of the present case, the Court found that the prosecutrix was a student of the eighth class and was about 14 years on 28.01.2001 and she was of tender age. She had gone to the house of the appellant looking for her friend- the sister of the appellant. When she asked the appellant as to where the sister of the accused was, he told her that she was in the room and when she went inside the room, he followed her into the room, bolted the room from inside, and raped her.

As a result of this incident, her parents stopped her from going to school and asked her to study eighth class privately. Considering the age of the prosecutrix, the conduct of the appellant, and the consequences of the rape on the prosecutrix, the Court did not think that there were adequate and special reasons, in this case, to reduce the sentence to less than the minimum sentence under Section 376(1), IPC. The appeal against his conviction was dismissed.

Cases:
Independent Thought v Union of India
Facts
In this case, the petitioner was Independent Thought, a national human rights organization registered in 2009. In the public interest, the petitioner filed a writ petition under Article 32 claiming that Exception 2 to Section 375 of IPC is both arbitrary and discriminatory towards a girl child.

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. The POCSO Act 2012 set the age of consensual sex as 18 years. Exception 2 is contradictory to Section 3 of the POCSO Act which has criminalized penetrative sexual assault.

Judgment
The Division Bench gave the following judgment while discussing all the relevant issues related to the case:
  • Exception 2 discriminates between a married girl child and an unmarried girl child without any reasonable nexus. It violates the bodily integrity, dignity, and reproductive choice of a girl child.
  • The Parliament has increased the age for giving consent, the age from marriage to 18 years. So the age of 15 years in exception 2 is unreasonable, unjust, unfair, and violates the right of the girl child.
  • Exception 2 states that sexual intercourse or sexual act by a man with his wife is not rape if she is above 18 years.
Mukesh & Anr. v State for NCT of Delhi & Ors
Facts
The case is famously known as the Nirbhaya case. In this case, a 23-year-old medical student was returning after a movie with her friend and took a bus. On the bus, she was gang-raped by six people and was brutally assaulted. After the rape, she along with her friend were thrown out of the bus naked. The girl died while she was being treated in a hospital in Singapore.

Judgment
In this case, the Supreme The court awarded death penalty to four of the accused among six. One of them being a juvenile was convicted by the Juvenile Justice Board and sent to the correctional home. The other one committed suicide before the judgment was delivered.

After this case, the need to amend certain provisions of Section 375 was felt so the Criminal Law (Amendment) Act, 2013 was brought into effect. Under the newly amended section, the punishment of rape is at least seven years which may extend to life imprisonment. Any man who is a police officer, medical officer, public officer, or public servant may be imprisoned for at least 10 years if commits rape. Where rape leads to the death of the victim or entered into a vegetative state the punishment of life imprisonment extending to death has been prescribed. The punishment for gang rape is at least 10 years.

Conclusion
There are so many cases of rape that are not even reported to the police. Although many guidelines are made, the punishments are made stricter but still, there is a rise in the number of cases. The reason is that women are not well aware of their rights and also those who are victims hesitate to come forward and report such incidents.

Society needs to understand that the victims are nowhere at fault so they don’t deserve to be ostracised by society rather people should support the victims to start a new life. When the thinking of the people about the rape incidents will change then only the various laws which are made can be implemented properly.

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