Rape Law In India: Problems In Prosecution Due To Loopholes In The Law The article revolves around the

law established for rape in India. Taking Section 375 and Section 376 of the Indian Penal Code as the
base, the article moves towards numerous aspects indicating the areas which need attention. It
uncovers the deficiencies in the rape law beginning with the analysis on the narrow definition of rape in
the Indian Penal Code, keeping in view the definitions of rape in the Sexual Offences Act, 2003 of
England and the Criminal Law Consolidated Act, 1935 of Australia as well as the 172nd report of the Law
Commission of India. The current law does not take into account acts of forced oral sexual intercourse,
sodomy and penetration by foreign objects, which needs urgent attention as the impact of these can
destroy the physical frame of the victim and defile her soul equally. Considering this requirement, the
article talks about the proposed Criminal Law Amendment Bill, 2010 which aims at removing the present
anomalies in the archaic definition of rape in section 375. There are various questions which haunt the
judiciary on matters of consent and conduct of the victim. A theoretical analysis, backed by
observations on landmark cases, is putforth on the various questions revolving around the rape of a girl
of easy virtue. The article further submits the analysis on the derogatory practice of the Per Vagina Test
and how it comesup as an anathema for Indian women. The article triggers the broad debate on
castration being a befitting sentence on any paedophile or any serial offender. Women are the only
oppressed group in our society that live in intimate association with their oppressors. So in the end, it is
about making the law black and white for all. On the whole, the article goes in deep details of the rape
law both in theory and practice, suggesting changes and unveiling the loopholes & misuse it invites.
Studying the laws, the process, the application of those laws, one thing is certain the entire structure of
dispensation of justice needs an over haul, otherwise the victim shall no longer be the woman alone, but
humanity at large.

Rape: Meaning And Extent

Perhaps the most heinous crime against a woman is commission of rape. The word rape has been
derived from the Latin term rapio which means to to seize. Rape is to seize or take by force. Black's
Law Dictionary defines rape as" the unlawful carnal knowledge of a woman by a man forcibly and
against her wil" l. As far as the Indian Penal Law is concerned, the definition of Rape is contained in
Section 375 of the Indian Penal Code and the punishment is prescribed in Section 376 of the code.
Section 375 of the Indian Penal Code clearly states that a man commits rape when he has sexual
intercourse with a woman if he fulfills six conditions. First, if he does it against her will, secondly, when it
is without her consent. Thirdly, when he has her consent but he consent has been obtained by putting
her 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
believes herself to be lawfully married. Fifthly, when her consent is obtained because of unsoundness of
mind or intoxication, stupefication, she is unable to understand the nature and consequences of what
she is consenting to. Lastly, with or without consent, when she is under sixteen years of age. Also,
penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Penetration does not mean full penetration, but certainly means penetration by the male organ within
the pudendum of the woman. As per Halsburys Law of England : [I]t is not necessary to prove the
completion of sexual intercourse by the emission of seed intercourse is deemed complete upon proof
of penetration only. The slightest degree of penetration is enough. If penetration cannot be satisfactorily
proved, the defendant may be convicted of attempted rape if the intent is not proved, he may be
convicted of indecent assault. But, sexual intercourse by a man with his wife, the wife not being under
fifteen years of age, is not rape at all. From a careful perusal of the aforesaid section, two things can be
ascertained that a rape can only be committed by a man and it can only be committed against a
woman. In the past, women in Ireland and England have been convicted for the offense of rape . But
under the Indian Penal Code, a prosecution for the offense of rape is not maintainable under Section
376. However, a woman can be convicted of abetment of rape under Section 109. Civil Society Groups in
India have been demanding a gender neutral rape law so that sexual assault against men can be
proceeded against under the same statute. This definition only takes into account forced acts of penile-
vaginal intercourse, it leaves instances of forced penile/oral, penile/anal, finger/vaginal or object/vaginal
out of its ambit. The impact of these offences is in no manner less than the trauma of penile/vaginal
intercourse however, no amendment has been effected as of today to include these offences in the
definition of rape. Let us examine the definition of rape as per the penal laws of other nations. The
definition of Rape laid down in Sexual Offences Act, 2003 of England includes acts of intentional
penetration of the vagina, anus or mouth of the complainant, without their consent . The definition is
very wide, it includes within its ambit all sorts of forced sexual intercourse whether effectuated by
penetration or otherwise. Thus, sexual abuse through insertion of inanimate objects in the vagina, anus
or mouth is also treated as rape. Another significant feature of this definition is that it conceives rape as
a gender neutral offence, which is to say that rape can be committed on members of either of the two
genders and by women also. Section 5 of the Criminal Law Consolidated Act of Australia includes anal
and oral sex without the consent, in the definition of rape. As per Section 3 of the Sexual Offences Act of
South Africa rape is defined as: Any person who unlawfully and intentionally commits an act of sexual
penetration with a complainant, without the consent of the complainant, is guilty of the offence of rape.
And "sexual penetration" is defined as: Any act which causes penetration to any extent whatsoever by
the genital organs of one person into or beyond the genital organs, anus, or mouth of another person
any other part of the body of one person or, any object, including any part of the body of an animal, into
or beyond the genital organs or anus of another person or the genital organs of an animal, into or
beyond the mouth of another person

Implications Of The Loophole

The implications of these loopholes are that any act of forced sexual intercourse that doesnt involve
penile vaginal intercourse is not considered rape. These offences are dealt with under Section 354 and
Section 377 irrespective of the fact that the above mentioned offences are as derogatory and
humiliating as the offence of forced penile/vaginal intercourse is. It is worthwhile to note that forced
nonvaginal intercourse is usually practiced on children and in such cases this loophole in Section 377
defeats the very purpose for which a differential treatment was envisaged under Section 376 (2) (f).
There are some very pertinent reasons that necessitate the amendment of Section 376 and bringing a
change in the definition of rape. These are: Forced sexual intercourse where penetration is not
effected is dealt with under Section 354 and is considered a less grave offence. The punishment
prescribed for this section is not consistent with the gravity of the crime, it is not only a bailable offence
but it is compoundable also which effectively means that there is a strong likelihood of a victim being
compelled to withdraw her case Offences in the nature of penile/anal intercourse, penile/oral
intercourse, object/vaginal intercourse are covered under Section 377.This archaic law was enacted not
to punish such offenders but to punish homosexuality, thus consent is no defence for a charge of
unnatural sex. Therefore, this section places forced sexual intercourse at the same pedestal with
consensual sexual intercourse. Section 354 and Section 377 prescribe no minimum punishment and
therefore, no obligation on the courts to record any special reasons on record for giving a lesser
sentence to an offender. A careful perusal of some of the judgments of the Supreme Court would lend
credence to the fact that there has been a judicial tendency to show undue leniency towards offenders
of sexual crimes. In Raju v. State Of Haryana , a young boy aged 20/21 years had committed sodomy on
a hapless girl of 9 years of age for which was sentenced to 3 years imprisonment. On appeal the
sentence was reduced to 6 months citing young age of the appellant as a reason. However, the court
failed to take into account the age of the victim and the unimaginable trauma that the appellants
ghastly act had caused to her. Similarly, in Chittaranjan Das v. State of Uttar Pradesh , the court reduced
the sentence of the appellant, a highly qualified and cultured individual who had committed the
offence of sodomy on a young girl, to 2 months. The loss of service of the appellant as a result of the
conviction was cited as a reason. The result of these cases would have been different if these offences
would have fallen under Section 375 since there is an obligation on the part of the courts to impose a
minimum sentence as laid down in Section 376. Under Section 327 (2) of the Criminal Procedure Code,
there is no obligation on the part of the court to provide an in camera trial to the victims of offences
under Section 354 and Section 377. Although, this issue has been addressed by the Supreme Court in
Sakshi v. Union of India , however Section 228 A of the Indian Penal Code has still not been amended to
ensure that the victims identity is protected. This means that the public authorities, courts as well as
the media are not bound to protect the identity of a victim of the said offences. In Phul Singh v. State of
Haryana, it was clearly held that the benefit of Section 4 of Probation of Offenders Act, 1958 cannot be
accorded to a person who commits a reprehensible crime of rape. However, there is no law to ensure
that the benefit of this act is not given to a person convicted of an offence under Section 354 or Section
377. There has been an alarming rise in the cases of sexual abuse of children, if a girl child is subjected to
forced non vaginal , non anal sexual intercourse then the offender would be punished under Section
354, however, if a boy is subjected to the same then the offender will only be booked for the offence of
voluntarily causing hurt or use of criminal force. It is submitted that the punishment

prescribed in the code for these offences is not at all consistent with the gravity of these offences. The
current law presumes that the offence of rape can only be committed against a woman by a man.
However, as mentioned above, there have been reported cases in UK wherein, women have been
convicted for committing the offence of rape. Assuming that a woman subjects another woman to
forced sexual intercourse through the use of an inanimate object or otherwise then she cannot be
booked for any offence under IPC since penetration is a necessary element for establishing an offence
under Section 377. Further, Section 354 also assumes that a woman cannot outrage the modesty of
another woman. This narrow definition of rape has been criticized by Indian and international womens
and childrens organizations and civil society organizations. Their reasons have been succinctly
encapsulated in the famous Public Interest Litigation of Sakshi v. Union of India : [...]The interpretation
[by which such other forms of abuse as offences fall under Section 354 IPC or Section 377 IPC] is ...
contrary to the contemporary understanding of sexual abuse and violence all over the world. There has
been for some time a growing body of feminist legal theory and jurisprudence which has clearly
established rape as an experience of humiliation, degradation and violation rather than an outdated
notion of penile/vaginal penetration. Restricting an understanding of rape reaffirms the view that rapists
treat rape as sex and not violence and thereby condone such behavior. The petitioner in this case placed
reliance on the following reference from Susan Brownmillers book Against our will to support this
contention and to challenge the current interpretation of rape. [..] In rape ....the intent is not merely to
"take", but to humiliate and degrade ..... Sexual assault in our day and age is hardly restricted to forced
genital copulation, nor is it exclusively a maleonfemale offence. Tradition and biologic opportunity have
rendered vaginal rape a particular political crime with a particular political history, but the invasion may
occur through the mouth or the rectum as well. And while the penis may remain the rapist's favorite
weapon, his prime instrument of vengeance......it is not in fact his only tool. Sticks, bottles and even
fingers are often substituted for the "natural" thing. And as men may invade women through other
offices, so too, do they invade other men. Who is to say that the sexual humiliation suffered through
forced oral or rectal penetration is a lesser violation of the personal, private inner space, a lesser injury
to mind, spirit and sense of self? It was contended by the petitioner that the court should interpret
Section 375 to include all forms of penetration such as penile/vaginal, penile/oral, penile/anal,
object/oral, object/vaginal etc. within its ambit. The court however declined to accept this on the
ground that penal laws are to be interpreted strictly and doctrine of stare decisis has to be followed. The
172nd Report of the Law Commission of India had made the following recommendations for substantial
change in the law with regard to rape. i. The term Rape should be replaced by the term sexual assault.
ii. Sexual intercourse as contained in section 375 of IPC should include all forms of penetration such as
penile/vaginal, penile/oral, finger/vaginal, finger/anal and object/vaginal and sexual assault on any part
of the body should be construed as rape. iii. Rape laws should be made gender neutral as custodial
sexual abuse of boys is rampant. iv. A new offence, namely section 376E with the title unlawful sexual
conduct should be created. v. Section 509 of the IPC was also sought to be amended, providing higher
punishment where the offence set out in the said section is committed with sexual intent. vi. The
commission recommended that explanation (2) of section 375 of IPC should be deleted. Forced sexual
intercourse by a husband with his wife should be treated equally as an offence just as any physical
violence by a husband against the wife is treated as an offence. On the same reasoning, Thus, there is an
urgent need to redefine rape and to incorporate the above mentioned recommendations in the
definition of rape in order to ensure that there is no travesty of justice.

Conduct Of The Victim And The Per Vagina

Test There are many questions which torment the judiciary compelling immediate attention one of the
major worries being the victims sexual history. What to do when a rape case is brought before the
judiciary, wherein the girl is of easy virtue? How should it affect the punishment whether one should
escape punishment or get a reduced punishment for raping a girl with loose morals? And, whether the
consent should be inferred or not? In State of Maharashtra v. Madhukar Narayan Mardikar
(http://www.legalservicesindia.com/forum/topic91maharashtravmadhukarnarayanmardikarmerely-
becauseawomanisofeasyvirtueherevidencecannotbethrownoverboard.html) , the matter went to
Supreme Court where Ahmadi, J. commented [...] Even a woman of easy virtue is entitled to privacy and
no one can invade her privacy as and when he likes. So also it is not open to any and every person to
violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to
violate it against her wish. She is equally entitled to the protection of law. Therefore, merely because
she is a woman of easy virtue, her evidence cannot be thrown overboard. Tukaram v. State of
Maharashtra ( http://www.legalservicesindia.com/forum/topic48tukaramandanrvsstateofmaharashtra-
landmarkjudgmentonrape.html )showed the negative side of the fingertests. This infamous case known
as the Mathura case made everybody see the criminal justicesystem of India differently and uncovered
shocking revelations to it. In this case, Mathura was examined by Dr. Kamal Shasatrakar. The girl had no
injury on her person but her hymen revealed old ruptures and the vagina admitted two fingers easily.
Therefore, it was indicated that Mathura was used to sexual intercourse. This judgment highlighted
several problems that existed in the then prevalent criminal law. Some of them are: the issue of
consent, the reference to the girls sexual history, the reference to twofinger tests and the question of
burden of proof. In this connection, it would be worthwhile to examine Section 155 (4) of the Indian
Evidence Act, 1872 as it existed at that time. It said that when a man is prosecuted for rape or an
attempt to ravish, it may be shown that the prosecutrix was of generally immoral character. The effect
of the above section was that in every rape case, the defence was used to plead that the victim was of
an immoral character. It had become so easy for the defence to question the credibility of the victim
through the inhumane and severely degrading practice of finger tests. In view of this, the aforesaid
provision was finally omitted by an amendment made in the said Act in 2002 this was done after the
172nd Law Commission Report recommended the deletion of this clause. Further, a provision was added
in Section 146 of the aforesaid Act which said that in a prosecution for rape or attempt to commit rape,
it shall not be permissible to put questions in the cross examination of the prosecutrix on to her general
immoral character. All these arguments on the conduct of the victim, her sexual history and her loose
virtues go against the validity of the Per Vagina Test. This test has comeup as an anathema for Indian
women and despite being a derogatory practice, has still not been abolished. There are a series of
judicial observations which go against it. Additional Sessions Judge, Kamini Lau observed that: [T]he test
is violative of the fundamental right to privacy of the victimState action cannot be a threat to the
constitutional rights of an individual. What has shocked my conscience is that this test is being carried-
out in a routine manner on victims of sexual offences (over minors) by doctors. Even as the higher courts
in India have laid down guidelines on ''maintaining the dignity'' of the victim during a rape trial, use of
finger test by the doctors on rape victims still continues. Taking a step forward to ensure the rights of a
woman, a trial court has held that such medical examination (finger test) is "obsolete" and "violative of
the fundamental rights" of a woman. [I]t is this test which is the cause of concern. It is being routinely
conducted by the doctors on the victims of sexual abuse and rape be it a minor, unmarried girl or
married woman, without having any regards to the fact that the opinion of the doctors rendered after
conducting such a test has no bearing with regard to the guilt or otherwise of the accused. the court
said. The court's observations came while hearing the rape case of a minor child. After going through the
medical examination report of the victim, the court was shocked to know that the child had to undergo
the PV test, which is done to determine if the person is ''habituated to sex''. The court questioned the
validity of the test stating that how a test could establish if the victim was lying only on the basis of the
status of her previous sexual life. ASJ Lau asked:"The character evidence of a rape victim is no longer
admissible in evidence, how can this test (PV Test) which only permits the doctor to state if the woman
is habituated to sex or not, continue to inform the rape trials,' ' .Maintaining that the existing medical
and legal procedures were irrelevant to the trial of the rape cases and were required to be reviewed and
''stopped forthwith'', the court has asked the Directorate of Health, chief secretary of Delhi and the
National Commission for Women to take ''appropriate action in this regard". The Per Vagina Test
traumatizes the survivor and gives the defence a stick with which it petrifies the rape victim in court.
Victims lose their cases in court as the defence often undermines their testament leaving them
astounded. Yet, the survivors testimony is supposed to be enough in a rape case and the forensic
evidence is only secondary. This is so because survivors often wait before they go to police and as a
result valuable evidence is lost resulting in several court rulings emphasizing that delay in filing a
complaint should not be held against the survivor. It is one derogatory practice that compels immediate
focus and should be done away with. Debate On Castration Of Sexual Offenders The debate on
castration as a punishment for rape has gained momentum with Additional Sessions Judge, Kamini Lau
again recommending castration as a suitable punishment for rapists . She observed that: [C]astration is
the most befitting sentence which can be imposed on any paedophile or serial offender but the hands of
this court are tied as the statute does not provide for it. Indian legislators are yet to explore this as an
alternative to conventional sentencing. The message to be sent is to be loud and clear and that any
person who messes with the child will not be spared. Noted jurist Fali S Nariman supported the idea
mooted by the ASJ and said: [M]y instinctive reaction is to applaud what has been recently
recommended by a Delhi Court. The punishment recommended does fit the crime. The horrendous
offence of rape debases and stigmatizes the victim as almost no other offense. It has been proved that a
long term imprisonment is no deterrent something more drastic is definitely required to put the fear in
the perpetrator. If you say this is uncivilized, my answer is, so is death penalty for murder. What is
Castration? Castration is any action, surgical, chemical or otherwise by which a male loses the function
of the testicles. Castration is used in many countries as a mode of punishing sexual offenders Castration
is practiced in two ways: One is Surgical Castration: The process of surgical castration, called
orchiectomy involves the removal of the testes with the idea that the removal of testes would result in
loss of testosterone which would in turn cause elimination of sexual desire.

Conclusion

The Criminal Justice system of India needs reconditioning on the rape law. Considering all aforesaid
arguments, it can be concluded that the definition of Rape needs to widened and should include acts of
forced oral sexual intercourse, sodomy and penetration by foreign objects, in theory. There have been
instances when absurd questions have been putforth to the victim by the investigating bodies, regarding
the type of clothes she was wearing at that time, about how many times penetration took place, about
how long did it take to penetrate her. There is no specific law which safeguards a girl from such
treatment. It should be understood that the conduct of the victim holds no importance in matters
pertaining to rape and that even a woman of loose morals is entitled to fundamental rights and that
nobody can violate her right to privacy, dignity and bodily integrity. Also, the petrifying and derogatory
practice of the Per Vagina test should be abolished as it is violative of the fundamental rights of a
woman rendering it constitutionally invalid and leaving the survivor deeply traumatized. In the end,
instead of enforcing barbaric and fierce punishments like castration, the law for rape in India should be
critically examined and the legislature should do away with all the anomalies that could possibly pester
the victim anywhere during the process of seeking justice.
Section 375 of Indian Penal
Code, 1860 Explained!
Article shared by Pinki Sarkar

Legal Provisions of Section 375 of Indian Penal Code, 1860.

Rape:

This section defines the offence of rape. Before the definition of rape was amended by
the Criminal Law (Amendment) Act, 1983, which came into effect from December 25,
1983, there were only five clauses in the definition. The above named Act made six
clauses instead of five, and consequently the word five in the third line of the definition
was replaced by the word six.

In the third clause of the definition the words or any person in whom she is interested
were added after the word her. A new fifth clause was enacted and added to the
definition, while the old fifth clause was moved to become the sixth clause of the
definition. Section 375 says that except under the exception provided for in this section,
a man commits the offence of rape who has sexual intercourse with a woman under
circumstances stated in any of the six clauses of this section.

The language used is a man is said to commit rape who, except in the case hereinafter
excepted, has sexual intercourse with a woman which means that only a man and no
other person can be guilty of rape, and the sexual intercourse of only a man with a
woman can amount to rape.

In Sakshi v. Union of India} the Supreme Court held that by a process of judicial
interpretation the provision of section 375, Indian Penal Code cannot be altered so as to
include all forms of penetration such as penile/vaginal penetration, penile/oral
penetration, penile/anal penetration finger/vaginal and finger/anal penetration and
object/vaginal penetration within its ambit.

The definition of rape in the Code is restricted only to penile-vaginal penetration. The
expression sexual intercourse used in section 375 is defined in the dictionary as
hetrosexual intercourse involving penetration of the vagina by the penis. This is the
correct meaning and is approved by the Supreme Court.

FirstAgainst her will

According to the first clause, sexual intercourse by a man with a woman against her will
amounts to rape if it does not fall under the exception provided in the section. The
expression against her will means that the act is done in spite of opposition on the part
of the woman. An element of force or compulsion is present. It imports that the victim
has been overpowered by the man. It shows that the man has used coercion against
her.

Where the accused had sexual intercourse with the woman victim by overpowering her
and while the other accused had held her hands tightly, it was held to be a case of rape.
Where the accused, a young man of twenty two years of age, overpowered a thirty
years old mother of two children and committed rape on her, his defence that he would
not have succeeded single handedly against such a senior lady was rejected because
the facts and circumstances including the injuries on the private parts of the lady which
could result only on forced sex established rape beyond doubt.

The court distinguished the case of Pratap Misra v. State, where the Supreme Court
had observed that the opinion of medical experts also showed that it is very difficult for
any man to rape single handed a grown up and an experienced woman without meeting
stiffest possible resistance from her.

SecondlyWithout her consent

If the sexual intercourse by a man with a woman is without her consent, it amounts to
rape under the second clause if it does not fall under the exception given in the section.
According to section 90 of the Code, consent given under fear of injury or under a
misconception of fact is not a valid consent if the offender knows or has reason to
believe that the consent was given in consequence of such fear of injury or
misconception, or, if the consent is given by the victim who because of unsoundness of
mind or intoxication is unable to understand the nature and consequence of the act to
which she gave her consent.
The third part of that section that the consent is not valid if it is given by the victim who
is under twelve years of age, unless the contrary appears from the context, does not
apply to rape cases because the contrary does appear from the context in the form of
the sixth clause as well as the exception given in section 375 wherein consent given by
a girl under sixteen years of age is immaterial, and sexual intercourse by a man with his
own wife, the wife not being under fifteen years of age, is not rape respectively. A
sleeping person cannot give consent.

Where the appellant and another person abducted a school girl despite raising of alarm
by her, kept her under unlawful confinement at various places, and ultimately she
consented to marry the appellant under the threat that otherwise he would take her to
unknown places, and that night itself the appellant raped her, this section and section
366 were held to apply as giving consent to marriage did not mean consent to establish
sex relations before marriage.

Giving consent to sexual intercourse by a grown up woman on a promise of marriage by

the accused, however, is a valid consent and is not consent under misconception of fact
under section 90, unless it is proved that right from the beginning he had no intention to
marry her.

There is a difference between consent and submission. Consent involves submission

but the converse is not necessarily true. Consent is voluntarily and consciously
accepting what is proposed to be done by another and concurred to by the former.

In Pratap Misra v. State, the three accused men allegedly raped a woman in her fifth
months of pregnancy after a few days of which abortion took place. The doctors were of
the view that when such a woman is forcibly raped by three men one after the other
abortion would result immediately thereafter due to shock and not after a few days as
was the case here.

The opinion of the medical experts also showed that it is very difficult for any man to
rape single handed a grown up and experienced woman without meeting very stiff
opposition. Injuries on the person of the victim and the accused were not found which,
the court thought, showed absence of resistance on the part of the victim.

This and other factors taken together enabled the Supreme Court to conclude that the
victim was a consenting party and thus the accused were not guilty of rape. The logic on
the part of the court, with respect, seems strange. Does the court want one to believe
that a woman in the fifth month of pregnancy would be so interested in sex relations as
to allow three men to have sex with her? Or, does the court expect existence of marks
of injury on the persons of the accused men when one of them is raping the woman
while the other two are holding her tight by overpowering her? Or, does the court really
believe, that in such a situation where a victim is being raped by one while two others
have overpowered her that the sexual intercourse would be so difficult for the men as to
leave injury marks on the body of the victim? And, when the medical experts opine that
it is very difficult to rape a grown up and experienced woman single handed, is this
opinion of theirs connected with medical matters at all?

An argument that after the alleged rape had already taken place, and while the victim
was being taken back she demanded money, would prove that everything had
happened with her consent, cannot be accepted as in any case consent on the part of
the victim, to negative a rape charge, must be before the incident and not after.

But where a woman gives her consent for the sexual intercourse before the penetration,
howsoever tardy or unwilling it may have been, no matter how much forceful the
penetration may have been, the act cannot amount to rape.

Where a fourteen year old girl went to a doctor for professional advice and he raped her
while the victim all along believed that the doctor was treating her medically and,
therefore, she did not resist him, the doctor is guilty of rape as this cannot be held to be
consent on her part.

Similarly, where a nineteen year old girl went to consult a doctor on some medical
aspects and he raped her while the girl believed that he was performing surgical
operation which he had suggested to her, it was held that there was no consent on the
part of the victim and the doctor was guilty of rape.

Again, where a music teacher pretending to be performing an operation to improve the

breathing of the victim which would improve her voice and would enable her to sing
better, raped her, he was held guilty of rape even though the girl submitted herself
voluntarily under the belief, wilfully and fraudulently obtained by the accused, that he
was treating her medically and surgically.
In State of Himanchal Pradesh v. Shreekant Shekari, the Supreme Court clarified that
the question of consent is really a matter of defence by the accused and it was for him
to place materials to show that there was consent.

Thirdly

Where a man has sexual intercourse with a woman 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, he is guilty under the third clause of committing rape. Under this clause
the prosecution must prove that the offender had put either the victim or any person in
whom she is interested in fear either of death or of hurt and her consent was obtained
because of this fear. Before the Criminal Law (Amendment) Act, 1983 came into
existence on December 25, 1983 the words or any person in whom she is interested
did not exist in this clause.

In Tukaram v. State, popularly known as the Mathura case, an eighteen year old
Harijan orphan girl of that name was called to the police station on an abduction report
filed by her brother. When they were about to leave the police station, the victim was
asked to stay by G, one of the accused, who was on duty. Later on in that late hour of
night he took her into a toilet and allegedly raped her.

After that the other accused T allegedly molested her and tried to rape her but could not
succeed as he was heavily drunk. The lower court acquitted them on the basis of tacit
consent on the part of the victim. The Bombay High Court convicted G of rape and T of
molesting the woman on the ground that consent and passive submission were
different from each other, and that mere passive or helpless surrender of her body and
her resignation to the others lust under threats or fear could not mean consent on her
part.

The court observed that the fact that the victim made a statement immediately after the
incident to the members of her family as well as before the crowd would show that she
was subjected to forcible intercourse amounting to rape. The Supreme Court set aside
the conviction and held the accused not guilty.

It was observed that the woman was not subjected to fear of death or of hurt and it was
not a case of passive submission as held by the High Court because there were no
marks of injury on her person which showed that the whole affair was a peaceful one
with consent. It was also said that when G asked her to stay she was not alone then
and she could have said no at that very moment or could have requested her brother
to take her, but she did neither.

These, along with the fact that her conduct in following G and allowing him to have his
way with her to the extent of satisfying his lust in full, showed that she had consented to
the act. The judgment was very widely criticised. Issues like human rights and medical
examination of the accused and not the victim to find out whether the sexual intercourse
took place with consent or not were raised.

The detaining of a minor Harijan illiterate woman alone in the precincts of a police
station at night was severely criticised in the light of the then recent pronouncement
made in the Nandini Satpapathy v. P. L. Dani, by the Supreme Court itself. Various
women organisations also came forward against the judgment and the matter was
raised both outside and inside the Parliament.

This all culminated in the passing of the Criminal Law (Amendment) Act, 1983. In
addition to the changes brought about in the law by this Act as stated above under the
sub-heading sexual offences in the beginning of the comments under this section, it
also amended section 376 exhaustively and introduced minimum mandatory
punishments in rape cases, both ordinary and custodial. Besides, it added four new
sections 376-A, 376-B, 376-C and 376-D in the Code the first of which relates to
intercourse by a man with his wife during separation while the last three deal with
custodial sexual intercourse cases not amounting to rape.

A new section 114-A was also inserted by this Act in the Evidence Act which provides
that in a prosecution for rape under any of the clauses (a), (b), (c), (d), (e) or (g) of sub-
section (2) of section 376 of the Indian Penal Code where sexual intercourse by the
accused is proved and the question is whether it was without the consent of the woman
alleged to have been raped and she states in her evidence before the court that she did
not consent, the court shall presume that she did not consent.

Fourthly

Where a man has sexual intercourse with a woman with her consent when he knows
that he is not her husband but she has given her consent because she believes that he
is another man to whom she is, or believes herself to be, lawfully married, it amounts to
rape under the fourth clause. Knowledge on the part of the man that he is not the
husband of the woman with whom he is having sexual intercourse and that she has
given her consent because she believes him to be another man who is her husband is
the essential requirement of this clause.

In Bhitpinder Singh v. Union Territory of Chandigarh, consent for sex relations was
given by the prosecutrix under the belief that the accused was her husband.
The prosecutrix had married the accused without knowing that he was already married.
The Supreme Court held the accused guilty of rape under the fourth clause of section
375 of the Code.

Fifthly

According to the fifth clause of this section a man is guilty of committing rape if he has
sexual intercourse with a woman with her consent, when, at the time of giving such
consent, by reason of either unsoundness of mind or intoxication or the administration
by him either personally or through any other person of any stupefying or unwholesome
substance, she is unable to understand the nature and consequences of that to which
she gives consent. This clause was previously not there in this section and was inserted
by the abovementioned 1983 Act while the old fifth clause was renumbered in the
present section as sixthly.

Where the deceased had sexual intercourse with an imbecile girl and the jury concluded
that because of this defect of understanding on her part, she was incapable of giving
consent, the accused was held guilty of rape. Similarly, where the accused made a
thirteen year old girl quite drunk and raped her while she was insensible, he was
convicted of rape.

Where a woman was suffering from somnambulism or sleep walking and epilepsy and
walked out of her sleep on a late night and reached a place from where five accused
persons took her away into a lodge and all of them raped her, it was held that all of
them were guilty of rape because the woman suffering from such a disease was
incapable of giving consent.

Sixthly
The sixth clause of the section states that a man is guilty of committing rape who has
sexual intercourse with a woman with or without her consent when she is under sixteen
years of age. This clause specifically makes consent given by a woman under sixteen
years of age of no importance at all in rape cases. Initially this age was ten years. It was
raised to twelve years by the Indian Criminal Law (Amendment) Act, 1891, and again to
fourteen years by the Indian Penal Code (Amendment) Act, 1925, and yet again to the
present limit of sixteen years by Act XLII of 1949.

The prosecutrix, a girl of thirteen or fourteen years, was allowed by her father to be
taken away by the relatives of her elder sisters husband to her elder sisters home to
look after her for some time. Her father wrote two letters to them after some time to
send her back but got no reply in return. Later on he received the information that they
had got her married to the appellant.

He then lodged a report with the police that her daughter had been kidnapped by the
accused persons and she had been forced by them to have illicit intercourse with the
appellant. The police recovered her from the appellants home. The prosecutrix herself
gave the statement that the appellant had raped her many times in his house. The
medical evidence corroborated her statement. The appellant was convicted of rape.

Once it is established that the victim was less than sixteen years of age, the question of
consent on her part became altogether irrelevant and even if no injuries are found in her
private parts because she is used to sexual intercourse, the accused would be guilty of
rape. Where the accused persons forcibly took away the victim, a girl below sixteen
years of age, to another city and kept her there for a long time, even if it is proved that
she had given her consent to accompany them, it would not matter at all as far as the
offence of rape is concerned.

In Mahendra Murtiyan Madrasi v. State of Gujarat the accused was alleged to have
kidnapped the victim, a minor girl, with the intent that she might be forced or seduced to
illicit intercourse. The evidence showed that he had not used any force in taking her out
of her house. The victim herself had taken some money from her house for going with
the accused and the accused had no money of his own.

The victim stated that her father was going to betroth her to another boy against her
wishes. There was no evidence showing that the accused took or induced her out of the
lawful custody of her father. The Gujarat High Court held that sections 363 and 366 of
the Code do not apply in the case and since the accused had no intention to force or
seduce her to illicit intercourse section 366-A was also not applicable. But since the
victim was below sixteen years of age when the accused had sexual intercourse with
her, he was liable to be convicted under section 376 for rape on the basis of clause 6 of
section 375 even though the victim was a consenting party.

Explanation

The explanation attached to the section states that penetration is sufficient to constitute
the sexual intercourse necessary to the offence of rape. In other words, it is not
necessary for this offence that there must be a full and complete sexual intercourse.
The private part of a man must penetrate the private part of the woman; it is not
necessary to know as to how far it has entered.

Some part of the virile member of the man must have been within the labia of the
pudendum of the woman. Rupture of hymen is not at all necessary. Seminal emission is
not necessary. Presence of spermatozoa is also not necessary. Where the accused
attempted to ravish a girl and caused an injury on the fourchette indicating an attempt
but could not penetrate, he should be convicted of attempt to commit rape and not of
rape.

Exception

The exception attached to the section says that sexual intercourse by a man with his
own wife is not rape if the wife is not under fifteen years of age. This age limit was first
raised to thirteen years by Act XXIX of 1925, and then to fifteen years by Act XLII of
1949.

This exception has been added with a view to keep a check on husbands who may be
inclined to take advantage of their marital status prematurely. A husband should not
have a right to enjoy the person of his wife without taking into consideration her physical
safety first.

The law presumes that a wife who is not under fifteen years of age has given her
consent to her husband, by virtue of the marriage, to establish sexual contact with her.
But if the wife is under fifteen years of age and her husband does have sexual
intercourse with her under any of the six circumstances stated in this section, the
husband would be guilty of rape.

This, however, is subject to section 198 (6) of the Code of Criminal Procedure, 1973
according to which no court shall take cognizance of an offence under section 376 of
the Indian Penal Code where such offence consists of sexual intercourse by a man with
his own wife, the wife being under fifteen years of age, if more than one year has
elapsed from the date of the commission of the offence.

In camera proceedings and prohibition of publication

The Criminal Law (Amendment) Act, 1983 has, besides the changes indicated at
respective places in course of the above discussions, made certain additions in section
327, Code of Criminal Procedure, 1973 also. The old section 327 has been numbered
as sub-section (1) of that section and another provision, by way of sub-section (2), has
been added in that section. This new provision says that notwithstanding anything
contained in sub-section (1) the inquiry into and trial of rape or an offence under section
376, section 376-A, section 376- B, section 376-C, or section 376-D of the Indian Penal
Code shall be conducted in camera : provided the presiding judge may, if he thinks fit,
or on an application made by either of the parties, allow any particular person to have
access to, or remain in, the room or building used by the court. Sub-section (3) of this
section states that where proceedings are held under sub-section (2), it shall not be
lawful for any person to print or publish any matter in relation to any such proceedings,
except with the previous permission of the court.

Corroboration of the complainants story

The general rule in rape cases is that there may be corroboration of the complainants
story by independent evidence. The corroboration would naturally depend on the facts
and circumstances of each case. It may be in the form of injuries on the private or other
parts of the complainants body or that of the accused, condition of the clothes worn by
her or the accused, seminal or blood stains on her or on the accuseds body or clothes
or on the place of the incident, etc. Prompt or delayed lodging of the F.I.R. may also be
taken into account.

There may be other allied evidence as well. But all this is changing now . A woman who
is the victim of rape cannot be described as an accomplice. The Supreme Court has
stated that a socially sensitized judge is a better statutory armour against gender
outrage than long clauses of a complex section with all the protection writ into it.

It has also observed that the court cannot cling to a fossil formula and insist on
corroborative testimony. Judicial response to human rights cannot be blunted by legal
bigotry. In the famous case of Bharwada Bhoginbhai Hirjibhai v. State the Supreme
Court went on to emphasise that in the Indian setting, refusal to act on the testimony of
a victim of sexual assault in the absence of corroboration as a rule, is adding insult to
injury.

Why should the evidence of the girl or the woman who complains of rape or sexual
molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt,
disbelief or suspicion A girl or a woman in the tradition-bound non-permissive society of
India would be extremely reluctant even to admit that any incident which is likely to
reflect on her chastity had ever occurred.

She would be conscious of the danger of being ostracized by the society including by
her own family members, relatives, friends and neighbours. On principle, the evidence
of a victim of sexual assault stands at par with evidence of an injured witness. If the
evidence of the victim does not suffer from any basic infirmity and the probabilities
factor does not render it unworthy of credence, as a general rule, there is no reason to
insist on corroboration except from the medical evidence where the same can be
expected to be forthcoming.

There is, however, this qualification that corroboration may be insisted upon when a
woman having attained majority is found in a compromising position and there is a
likelihood of her having levelled such an accusation on account of the instinct of self-
preservation or when the probability factor is found to be out of tune.

Physical incapacity

The former Chief Court of Lower Burma held the view that a boy of twelve years of age
could be held guilty of attempt to commit rape as it is erroneous to believe that he could
not possess the physical capacity to commit rape. The Bombay High Court had also
held that a boy of thirteen to fifteen years of age who had the power of erection and
probably that of emission as per the medical report, could be convicted of attempt to
commit rape as penetration is enough to constitute rape.
Promise of marriage

In Uday v. State of Karnataka, the accused and the prosecutrix were deeply in love. He
promised to marry her on a later date. She was a nineteen year old college girl and was
aware of the fact that they belonged to different castes and proposal of their marriage
would be opposed by their families. Yet she started cohabiting with him consciously.

The Supreme Court held that consent on her part could not be said to be under
misconception of fact, i.e., promise to marry, but because she also desire for it. Also
false promise is not a fact under the Indian Penal Code. The accused was acquitted of
the charge of rape.

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
attempt to commit rape unless the court is satisfied that the accused had gone beyond
the stage of preparation with a view to gratify his lust at all cost.

Where the accused tried to rape the victim but she picked up an axe 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 a congestion about 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.
Section 375: Analysis of Provisions
Relating to Rape
February 14, 2015 by kudrat Leave a Comment

By Soumya Singh Chauhan, UILS, Chandigarh

Editors Note: The rape laws of the country were amended in the year 2013 after the
Justice J.S. Verma Committee Report, to address the prevalent inadequacies. This
paper analyses in detail, the provisions of the amended Section 375 of the Indian Penal
Code. It discusses important concepts like consent, will, submission, minority,
misrepresentation, fraud etc. The paper scrutinises the law through landmark case laws
and uses recent decisions to explain the interpretation of the amended provision.

Rape: Meaning
The word rape is derived from the Latin term rapio, which mean to seize. Thus rape
literally means a forcible seizure. It signifies in common terminology, as the ravishment
of a woman without her consent, by force, fear, or fraud or the carnal knowledge of a
woman by force against her will. In other words, rape is violation with violence of the
private person of a woman.

In the Indian Penal Code, Section 375 defines rape.

Taking note of the inadequacy of law of rape and its failure to safeguard the rights of the
innocent victims against the heinous crime, the Parliament in 1983 and 2013
extensively amended the law of rape so as to make the law more realistic.

Old Provision

375. Rape. A man is said to commit rape who, except in the case hereinafter
excepted, has sexual intercourse with a woman under circumstances falling under any
of the six following 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 sixteen years of age.

Explanation.- Penetration is sufficient to constitute the sexual intercourse necessary to

the offence of rape.

Exception.- Sexual intercourse by a man with his own wife, the wife not being under
fifteen years of age, is not rape.

After Amendment[i]

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 ~ of body of such woman or makes her to 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 I.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 I.A medical procedure or intervention shall not onstitute 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.

Ingredients
This section consists of the following:

1. Sexual intercourse by a man with a woman.

2. The sexual intercourse must be under the circumstances falling under any of the seven
clauses of section 375.

Sexual Intercourse

A very important case that led to definite amendments in the section is Sakshi v. Union
of India and Ors. (the Union of India, the Ministry of Law and Justice and the New Delhi
Commissioner of Police)[ii]. Sakshi, an NGO focusing on violence against women,
petitioned the Supreme Court of India to declare that rape under Indias criminal rape
law (Indian Penal Code, or IPC, section 375) includes all forms of forcible penetration.
Sakshi claimed that the current interpretation of the law, limited rape to forcible
penile/vaginal penetration only. The prosecution submitted that Section 375 IPC should
be interpreted in the current scenario, especially in regard to the fact that child abuse
has assumed alarming proportion in recent times. The words sexual intercourse in
Section 375 IPC should be interpreted to mean all kinds of sexual penetration of any
type of any orifice of the body and not the intercourse understood in the traditional
sense. The words sexual intercourse having not been defined in the Penal Code, there
was no impediment in the way of the Court to give it a wider meaning so that the various
types of child abuse may come within its ambit and the conviction of an offender may be
possible under Section 376 IPC. Sexual abuse of children, particularly minor girl,
children by means and manner other than penile/vaginal penetration is common and
may take the form of penile/anal penetration, penile/oral penetration, finger/vaginal
penetration or object/ vaginal penetration. It is submitted that by treating such forms of
abuse as offenses falling under Section 354 IPC or 377 IPC, the very intent of the
amendment of Section 376 IPC by incorporating Sub-section 2(f) therein is defeated.
The said interpretation is also contrary to the contemporary understanding of sexual
abuse and violence all over the world.[iii]

The Court upheld the existing definition of rape as forcible penile/vaginal penetration
only, refusing to include other forms of penetration within the ambit of rape as defined
under IPC. The Courts decision called on the Parliament of India to change the law,
stating:
The suggestions made by the petitioners [Sakshi] will advance the cause of justice and
are in the larger interest of society. The cases of child abuse and rape are increasing at
alarming speed and appropriate legislation in this regard is, therefore, urgently required.
We hope and trust that the Parliament will give serious attention to the points highlights
by the petitioner and make appropriate legislation with all the promptness which it
deserves.

During the Sakshi case, the Court ordered the Law Commission of India to examine and
respond to the issues that Sakshi raised. This exercise culminated in the 172nd Report
of the Law Commission of India (on review of rape laws, March 2000). The Report
suggested that the offence of rape be substituted by sexual assault, making the
offence gender-neutral and applicable to a range of sexual offences other than forcible
penile/vaginal penetration.[iv]

As of today, the rape law in India under section 375 stands amended and includes all
forms of sexual assault and is not just limited to penile/vaginal intercourse or
heterosexual intercourse.

Circumstances falling under the seven clauses

A man is guilty of rape if he commits sexual intercourse with a woman either against her
will or without her consent as enumerated under clauses firstly to seventhly of section
375 IPC.

1.Against her will:

The word will implies the faculty of reasoning power of mind that determines whether to
do an act or not. There is a fine distinction between an act done against the will and an
act done without consent. Every act done against the will is obviously without the
consent. But every act without the consent is not against the will. Clause (1) of this
section applies where the woman is in possession of her senses and therefore, capable
of consenting. In State of Uttar Pradesh v. Chottey Lal[v], the Supreme Court explained
that the expression against her willwould ordinarily mean that the intercourse was done
by a man with a woman despite her resistance and opposition.

In State of Punjab v. Gurmit Singh[vi], a young girl below the age of 16 years was
abducted from her school by the three accused in a car, and she was threatened with
death if she raised an alarm. Despite her refusal she was made to drink liquor. Then
she was raped by each one of them in turn under the threat of being killed if she
persisted in raising an alarm. Due to the threat she kept quite. After repeatedly
committing sexual assault on her, they left her the next morning near the place from
where she had been abducted. Surprisingly, the additional judge, Ludhiana acquitted all
the accused on both counts of abduction and rape disbelieving the version of
prosecutrix regarding rape and because of delay in FIR. Allowing the State appeal, and
holding the accused persons liable for rape since at no point of time the prosecutrix
willingly cooperated with the act, the Apex Court held that the sexual intercourse was
against her will for which the accused are liable for committing rape under section 376,
IPC.

In addition to this, the Apex Court laid down the following guidelines for trial in such
cases:

Delay in lodging FIR is not material when properly explained.

Testimony of victim in cases of sexual assault is vital and unless there are compelling
reasons which necessitate looking for corroboration of her statement, the Court should
find no difficulty in convicting the accused on prosecutrixs testimony alone.
Trial of sexual offences should be in camera and invariably by a lady judge whenever
available.
Court must restrain making observations that probably the prosecutrix is a girl of loose
moral character.
Court is under an obligation to see that prosecutrix is not unnecessarily harassed and
humiliated in cross-examination in case of rape trial.

2.Without her consent:

The essence of rape is the absence of consent. Consent means an intelligent, positive
concurrence of the will of the woman. The policy behind the exemption from liability in
the case of consent is based on the principle that a man is the best judge of his or her
own interest, and if a man (includes woman) decides to suffer a harm voluntarily, he or
she cannot complain of it when it comes about.

According to Explanation 2, consent means an unequivocal voluntary agreement when

the person by words, gestures or any form of non-verbal communication, communicates
willingness to participate in the specific sexual act. Thus, to absolve a person of criminal
liability, consent must be given freely and it must not be obtained by fraud or by mistake
or under a misconception of fact. This clause operates where a woman is unresponsive
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 has to be
obtained prior to the act.

The burden of proof: In case of charge of rape the onus lies upon the prosecution to
prove that the sexual intercourse was without the consent or against the will of the
woman. It would not be necessary for the defence to prove that the sexual intercourse
was with the consent of the woman.[vii]

Consent obtained by misrepresentation, fraud or under mistake is no consent:

Consent obtained by misrepresentation, fraud or under mistake is no consent. In Queen

v. Flattery[viii], the accused was charged for rape upon a 19-year-old girl. The girl who
had ill health and was subject to fits, visited the accuseds clinic along with her mother
and sought his advice for treatment. The accused, after examining the girl, advised her
to have a surgical operation, to which she consented, and under pretence of performing
it, had sexual intercourse with the girl. It was held that the girls consent would not
excuse the accused from conviction as it was given under a mistake of fact. There was
a misconception as to the nature of the act and whatever consent was given by the girl
was for the purposes of surgical operation and not for sexual intercourse.

In Williams[ix], the accused was a choirmaster who had sexual intercourse with his 16-
year-old student making her believe that he is performing a surgical operation to
improve her singing voice. Consent was vitiated by fraud and it was obtained under a
misconception, thus, he was held guilty of rape.

In these cases it is the non-consent to sexual intercourse rather than the fraud of the
doctor or the choirmaster that makes the offence rape.

Therefore, in Moti Ram[x] and Linekar[xi], it was held that if a woman were willing to
have sexual intercourse for monetary consideration, the fact that the consideration was
found to be fictitious would not vitiate the consent. Since there was consent on the part
of the prosecutrix for sexual connection, the accused persons are not liable for rape. It
would amount only to breach of contract.

Consent to intercourse on the assumption of false promise to marry:

Where a woman consents to sexual intercourse under the assumption of a promise to

marry, the falsity of the promise doesnt ipso facto vitiate consent. It depends on
whether the accuseds promise was false from its inception or not.

In Dileep Singh v. State of Bihar[xii], the appellant was charged and convicted under
section 376, IPC for committing rape of a minor girl. The victim alleged that the accused
forcibly raped her and later consoled her that he would marry her. Accordingly on
account of the promise for marriage made by him, she agreed to have sexual relations
with him. After she became pregnant, she revealed the matter to her parents but efforts
made by the father to establish marital tie failed. She was then constrained to file the
complaint. Although the trial court and High Court convicted the accused, the Supreme
Court set it aside. It said:

Consent given by a woman believing the mans promise to marry her would fall within
the expression without her consent vide clause (ii) to section 375 IPC, only if it is
established that from the very inception the man never really intended to marry her and
the promise was a mere hoax. When prosecutrix had taken a conscious decision to
participate in the sexual act only on being impressed by the accuseds promise to marry
her and the accuseds promise was not false from its inception with the intention to
seduce her to sexual act, clause (ii) to section 375, IPC is not attracted and
established.

In Uday v. State of Karnataka[xiii], 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 would be opposed by their family members. Yet
the prosecutrix started cohabiting with the accused consciously and became pregnant.
On the charge of rape the Court held that the consent given by the prosecutrix for
cohabitation cannot be said to be given under misconception of fact. She had freely,
voluntarily and consciously consented to have sexual intercourse with the appellant not
only on behalf of promise of marriage but because of their deep love for each other.
Hence the appellant was not held liable to be convicted for an offence of rape under
section 376, IPC.

However these were earlier positions. The Supreme Court has taken different views to
such situations now.

In Pradeep Kumar Verma v. State of Bihar[xiv], it was held that in case of a

representation deliberately made by the accused with a view to elicit the assent of victim
without having intention to marry her, will vitiate the consent given by the victim. It was
also observed that if on the facts it is established that at the very inception of the making
of the promise the accused did not really entertain the intention of marrying the victim
and the promise to marry held out by him was a mere hoax, the consent ostensibly
given by the victim will be of no avail to the accused to exculpate him from the ambit of
section 375 clause second. Such representation would only vitiate the consent.

Consent and submission- distinguished:

A woman is said to consent only when she freely agrees to submit herself, while in free
and unconstrained possession of her physical and moral power to act in a manner she
wanted. Consent may be either expressed or implied depending upon the nature and
circumstances of the case. However, there is a difference between consent and
submission. An act of helpless resignation in the face of inevitable compulsions is not
consent in law.

In Rao Harnam Singh, Sheoji Singh v. State,[xv] Kalu Ram, tenant of the accused was
required to provide his wife aged 19 years to satisfy the carnal lust of the accused Rao
Harnam Singh and his guests on the eve of entertainment party arranged on the
occasion of transfer of Ch. Mauji Ram, Dy. Superintendent, Jail, Gurgaon. The girl
protested vehemently against this outrageous demand, but under pressure of her
husband, was induced to surrender. Three accused persons- Rao harnam Singh, Ch.
Mauji Ram and Balbir Singh ravished her during the night and she died almost
immediately. Her shrieks were heard by some advocate living in the neighbourhood.
Refuting the defence contention, that the girl was a consenting party and she
surrendered her body to the three persons willingly and with approval of her husband,
the High Court while holding the accused liable for the offence of rape distinguished
between consent and submission:

1. A mere act of helpless resignation in the face of inevitable compulsion, quiescence, non-
resistance, passive giving in, when volitional faculty is either clouded by fear or vitiated
by duress, cannot be deemed to be consent as understood in law.
2. Consent on the part of a woman as a defence to an allegation of rape, requires voluntary
participation, not only after the exercise of intelligence, based on the knowledge, of the
significance and moral quality of the act, but after having freely exercised a choice
between resistance and assent.

Submission of her body under the influence of fear or terror is no consent. Although
each consent involves a submission, the converse does not follow and a mere act of
submission does not involve consent.

1. A woman is said to consent, only when she freely agrees to submit herself, while in free
and unconstrained possession of her physical and moral power to act in the manner she
wants. Consent implies the exercise of a free and unhampered right to forbid or withhold
what is being consented to; it always is a voluntary and conscious acceptance of what is
proposed to be done by another and concurred in by the former.

3.Consent procured by putting the woman under fear of death or hurt is no consent in
law:

Clause (3) to section 375 IPC asserts that consent of the woman in order to exonerate
the accused of the charge of rape must be given freely and voluntarily without any fear
of death or injury. In such a case the consent obtained will not be a valid consent. The
scope of the clause has been widened by the Criminal Law (Amendment) Act 1983 by
the insertion of the words or any person in whom she is interested after the words
putting her in fear of death or hurt in the clause. Now it reads With the other persons
consent when such consent has been obtained by putting such other person or any
person whom such other person is interested, in fear of death or of hurt. So now, the
fear of death or hurt could be towards her children, husband or parents also.

In State of Maharashtra v. Prakash[xvi], the Apex Court held that where a police
constable and businessman had sexual intercourse with a rustic woman by beating her
husband and threatening to put him in police remand, the act falls under clause (3) of
section 375 IPC. Suggestion that the victim had consented to intercourse willingly is
ruled out for the offence of rape. It is not necessary that there should be actual use of
force; a threat to use of force is sufficient.
A criticised judgment of the Supreme Court in this regard was Tukaram v. State of
Maharashtra[xvii] popularly known as Mathura rape case. Mathura, an 18-year-old
Harijan orphan girl was called to the police station on an abduction report filed her
brother at the police station- Desaui Ganj in Maharashtra on 26th March 1972. When
they were about to leave the police station, Mathura was kept back at the police station
in the late hours of the night by one of the constables, Ganpat, who was on duty. She
was taken to a toilet and raped. After him, another constable Tukaram tried to rape her
but being too heavily drunk, did not succeed. None of the two accused were held guilty
for the following reasons:

1. There were no marks of injury on her person which show that the whole affair was a
peaceful one and that the story of stiff resistance having been put up by the girl is all
false.
2. The girl was not subject to any fear that must have led her to submit to the act.
3. The girl was not alone when Ganpat ordered her to stay and she could have resisted
and appealed to her brother. Her conduct in meekly following Ganpat and allowing him
to have his way with her to the extent of satisfying his lust in full, made them feel that the
consent in question was not a consent which could be brushed aside as passive
submission.

The judgment of the Supreme Court was widely criticised both inside and outside the
Parliament as an extraordinary decision sacrificing human rights and a disgrace on
women under the law and the Constitution.

Subsequent decisions of the Supreme Court tried to atone for what it had decided in the
Mathura case.

In Balwant Singh v. State of Punjab[xviii], the victim aged 19/20 years was forcibly taken
in a car by the five accused persons and raped by each in a grove on the canal bank.
She was found lying unconscious under a banana tree near the canal bridge by her
father. She was medically examined and the report specified that she was raped by
more than one person. It was held by the court that the absence of injuries on back of
prosecutrix does not make the prosecution case unbelievable. The accused were five in
number and the prosecutrix was a girl of 19/20 years. She was not expected to offer
such resistance as would cause injuries to her.

4.Consent accorded under a misconception that the person is husband of the woman is
not a valid consent:

Consent given by a woman to a person for intercourse believing the person to be her
husband whereas in fact, he is not her husband, is no consent in law. In such a situation
the person knows the fact of deception, and pretends to be the husband of the woman.

In Bhupinder Singh v. Union Territory of Chandigarh[xix], the complainant Manjit Kaur

married the accused Bhupinder Singh, who she had met through work, in 1990 and
started cohabiting with him in Chandigarh. She became pregnant but accused got the
foetus aborted in 1991. When she was pregnant again in 1994, she met her husbands
two friends who told her that he was already married and had children from his first wife.
On being confronted her husband left her on the pretence of work and did not turn up
even after she gave birth to a daughter. She made a complaint and he was held guilty of
rape because prosecutrix married accused without knowledge of his first marriage. The
consent for cohabitation was given under the belief that the accused was her husband.
It was also held that delay in lodging complaint by prosecutrix couldnt in any event
wash away the offence because there was no consent. Therefore, the Supreme Court
refused to interfere with the order of conviction passed by the High Court.

5.Consent procured by a woman of unsound mind or under influence of intoxication etc.:

Clause (5) of section 375 IPC was added vide the Criminal Law (Amendment) Act of
1983. The object of the new clause was to protect and safeguard the interest of the
woman who accords consent for sexual intercourse without knowing the nature and
consequences of the act by reason of unsoundness of mind or under the influence of
stupefying or unwholesome substance or intercourse with a defective. In such cases it
is presumed that the consent of the woman is not free and voluntary to exonerate the
accused of the charge of rape.

In Tulshidas Kanolkar v. State of Goa[xx], the accused had sexual intercourse,

repeatedly with a woman who was incapable of comprehending the vicissitudes of the
act. Consequently the girl became pregnant. The additional session judge, holding the
accused liable for rape under section 376 imposed a sentence of ten years of rigorous
imprisonment along with fine of Rs. 10000. However the High Court in appeal reduced
the sentence to seven years and the appellant went in appeal against his conviction.
The Apex Court dismissed the appeal and held that for constituting consent there must
be exercise of intelligence based on knowledge of the significance and moral effect of
the act and criticised the High Court for reducing the sentence to seven years where it
should not have interfered.

6. Consent of a girl under 18 not valid in law:

Sexual intercourse with a woman with or without her consent when she is below 18
years of age amounts to rape. A woman under 18 is considered incapable of giving
consent for sexual intercourse. The age of consent was raised from 16 to 18 by the
Criminal Law (Amendment) Act of 2013.

The Apex Court in Harpal Singh[xxi], held that even if the girl of 14 is a willing party and
invited the accused to have sexual intercourse with her, the accused would be liable for
rape under this clause

In Mana Ramchandra Jadhav v. State of Maharashtra,[xxii] the prosecutrix left her

mothers house and joined the accused because her mother had 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 under this clause.
Exception to section 375:

Exception 2.- Sexual intercourse or sexual acts by a man with his own wife, the wife
not being under sixteen years of age, is not sexual assault.

Since child marriage in India is not yet void and is only voidable, 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 years of age on account
of the matrimonial consent that she has given.

In Bishnudayal v. State of Bihar[xxiii], where the prosecutrix, a girl of 13 or 14, who was
sent by her father to accompany the relatives of his elder daughters husband to look
after her elder sister for some time, was forcibly married to the appellant and had
sexual intercourse with her, the accused was held liable for rape under section 376.

However under section 376 B, IPC sexual intercourse with ones own wife without her
consent under a decree of judicial separation is punishable by 2 to 7 years
imprisonment.

Latest Judgments

Kaini Rajan vs. State Of Kerala[xxiv]

In this case the prosecutrix alleged that on 17.9.1997 she was forcibly taken and raped
by her brothers friend whom she had known for two years. She stated that she made a
hue and cry but was threatened with death and made quite. However, it was submitted
that her cries were not heard by the neighbours. 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 accuseds family,
no attempts were made to marry the two by the prosecutrixs family. All of these cast a
doubt on the prosecutrixs allegations. The Supreme Court acquitted the accused.[xxv]

Parminder @ Ladka Pola vs. State Of Delhi[xxvi]

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 friends 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 commission of the offence of rape, 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 eighth class and was about
14 years on 28.01.2001 and she was of a 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 the 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.[xxvii]

Edited by Kudrat Agrawal

[i] 375, Indian Penal Code.

[ii] Writ Petition (crl.) 33 of 1997.

[iii] http://www.legalserviceindia.com/articles/rape_1.htm.

[iv] http://www.crin.org/en/library/legal-database/sakshi-v-india-and-ors.

[v] (2011) 2 SCC 550.

[vi] AIR 1996 SC 1393.

[vii] Bhat Prabha Ruda, (1961) 2 G.L.R. 251.

[viii] 1877 QBD 410.

[ix] (1923) 1 KB 340.

[x] AIR 1954 Nag. 922.

[xi] (1995) 3 All ER 69.

[xii] (2005) 1 SCC 88.

[xiii] 2003 Cri LJ 1539 SC.

[xiv] 2007 IV Cri.LJ 4333 (SC).

[xv] AIE 1958 Punj 123.

[xvi] AIR 1992 SC 1275.

[xvii] AIR 1979 SC 185.

[xviii] 1987 Cri.LJ 971 (S.C.).

[xix] (2008) 3 Cri.LJ 3546 (SC).

[xx] (2003) 8 SCC 590.

[xxi] AIR 1981 SC 361.

[xxii] 1984 CriLJ 852 (Bom).

[xxiii] AIR 1981 SC 39.

[xxiv] 2013 (9) SCC 113.

[xxv] http://indiankanoon.org/doc/92369002/

[xxvi] ILC-2014-SC-CRL.

[xxvii] http://indiankanoon.org/doc/150376548/