This article is written by Darshit Vora of Narsee Monjee Institute of Management Studies and Oishika Banerji of Amity Law School, Kolkata. The article analyses the concepts of will and consent in detail. Further, it lists down points of distinction with emphasis on section 375 of the Indian Penal Code.

Introduction

Rape is violative of the victim’s fundamental right under Article 21 of the Indian Constitution. It is the most morally and physically abhorrent crime in society since it violates the victim’s body, mind, and privacy. A rapist ruins and defiles the soul of a vulnerable female, whereas a murderer destroys the victim’s physical form. Rape results in uprooting the entire life of the individual who is subjected to it. A rape victim cannot be considered an accomplice in any way. Because rape leaves a lifelong mark on the victim’s life, a rape victim is held in more regard than an injured witness. Rape is a crime against a society that infringes on the victim’s human rights. Rape, as the most despised crime, is a devastating blow to a woman’s greatest honor, and offends both her esteem and dignity. It causes the victim psychological and physical trauma, leaving indelible traces on her.  While performing any act, the two essential ingredients are consent and will. Different courts have interpreted the ingredients differently. The plain reading of consent mentions that act should be voluntary and willing. Many authors and researchers still believe that willingness and consent are the same. This article explains the clear differentiation between will and consent in consideration with Section 375 of the Indian Penal Code through various judgments of the courts. While considering Section 375 of the Indian Penal Code both the clauses need to be satisfied to avoid liability from the offence of rape. 

Section 375 of the Indian Penal Code, 1860 

Chapter XVI of the Indian Penal Code, 1860 has been subjected to changes from the heading ‘Of rape’ to that of ‘Sexual Offences’ by Act 43 of 1983. The definition of rape has changed significantly to include non-penile penetration, although it remains gender-specific when committed against a female. Previously, in Sakshi vs. Union of India (2004), a public interest litigation seeking a ruling that non-penile penetration should be classified as rape was denied by the Supreme Court, but the Court’s encouragement to change the definition prepared the path for the change of law. The new definition, which raises the age of consent to 18, is crucial since it now considers any type of penetration under the Section with a female under the age of 18 to be rape. If the woman was still under the age of 18 and over the age of 15, it would not have been considered rape in a married context as long as the agreement was given under Exception 2 of the provision. However, the Supreme Court ruled in Independent Thought vs. Union of India (2017) that the provision is unlawful in so far as it affects girls aged 15 to 18. Exception 2 must now be read as, ‘sexual intercourse or sexual acts by a man with his own wife who is not under the age of eighteen is not rape.’ A brief reading of Section 375 of the Indian Penal Code, 1860 reveals that it is a gender-specific provision for the protection of women, as rape can only be committed by a man. The Section is split into two parts. Clauses (a) to (d) in the first part of the Section merely state what acts undertaken by a man with a woman would constitute rape if they were committed in any of the seven situations specified in the second part of the provision. While Section 375 allows for consenting penetrative actions (which includes oral and anal intercourse), Section 377 made the same acts of penetration illegal regardless of consent. This results in a legal schism. Section 377’s prohibition of a consensual sexual relationship is based on no recognised or logical grounds. Consensual sexual expression and intimacy between adults in privacy cannot be considered “carnal intercourse against the natural order.” It is necessary to note that the provision has now been repealed after the Supreme Court made a landmark decision in Navtej Singh Johar vs. Union of India (2018).

Section 375 and its clauses 

Under Section 375, a man is said to commit rape if he;

1. Penetrates his penis into a woman’s vagina, mouth, urethra, or anus to any amount, or forces her to do so with him or anybody else; or
2. Inserts any object or portion of the body, other than the penis, into the vagina, urethra, anus, or any other part of her body, or forces her to do so with him or another person; or (commonly known as digital rape)
3. Manipulates any part of a woman’s body to produce penetration into the vagina, urethra, anus, or any other part of her body, or forces her to do so with him or anybody else; or
4. Applying his tongue to a woman’s vagina, anus, or urethra, or forcing her to do so with him or another person, or
5. Any of the seven clauses laid down under Section 375 of the Indian Penal Code, 1860. The provision embraced with seven clauses that majorly lays down circumstances that if takes place, can be quoted to be amounting to the offence of rape.  The same has been discussed hereunder.

First clause : against her will

If a male has sexual intercourse with a woman against her will, it is rape according to the first clause, unless it falls under one of the exceptions listed in the section. In Deelip Singh vs. State of Bihar (2005), according to the prosecutrix, the initial illegal conduct was carried out despite her opposition, but she later became a consenting participant as a result of frequent promises of marriage. She revealed in the FIR that she succumbed to him even before the first act because of the marriage promises. The Apex Court decided that her version was untrustworthy and that the charge against the accused was unfounded.

Second clause : without consent

If a male engages in sexual activity with a woman without her consent, it constitutes rape under the second clause if it does not fall within the exceptions set out in the Section. It should be noted that if the girl claims she did not consent to the rape while in custody, the court will assume she did not consent, as has been held in the case of Sohan Singh vs. State of Rajasthan (1998).

Third and fourth clauses : passive non-resistance or consent obtained by fraud

As per the third clause, when a woman’s assent is secured by putting her or anybody she cares about in fear of death or harm, although the act is done with her permission, the same amounts to rape. If a girl does not object to intercourse because she is misled, this does not constitute consent on her part. It was held that a medical man who was sent for professional guidance by a fourteen-year-old girl had a criminal relationship with her, and she made no resistance because she believed he was treating her medically, was guilty of rape. The prosecutrix’s submitting of her body out of dread or anxiety cannot be considered a consenting sexual act. In light of the case of State of Himachal Pradesh vs. Mange Ram (2000), the Supreme Court stated that the fact of consent may only be determined after a thorough examination of all relevant circumstances. Clause 4 concerns a rapist who is aware that he is not his victim’s spouse, and that her consent is granted because she believes he is another man to whom she is or believes she is lawfully married. In the case of Reg vs. R, 3 WLR 767 (HL), a wife left the matrimonial house and returned to live with her parents due to marital issues, advising the husband of her intention to file for divorce. While the wife was staying with her parents, the husband forced his way in and attempted to have sexual relations with her, during which he assaulted her. His attempted rape and assault causing actual bodily injury convictions were upheld.

Fifth clause : sexual intercourse with insane or drunken person

As per the fifth clause of Section 375, the acts done with the victim’s consent when she is unable to appreciate the nature and consequences of that to which she consents due to unsoundness of mind or intoxication, or the administration by the accused directly or through another of any stupefying or unwholesome substance, will amount to rape. In R v. William Camplin (1849), it was held that rape occurred when a man had carnal knowledge of a girl of imbecile mind and the jury found that it occurred without her consent, she being unable of giving consent due to a defect of comprehension. This act was committed when the perpetrator made a woman very inebriated and then violated her person while she was unconscious. These instances will now fall under the fifth clause of Section 375 of the Indian Penal Code, 1860.

Sixth and seventh clause : sexual intercourse with a minor and when the woman is unable to communicate consent

As per the sixth clause, if the offensive act is done with or without the consent of the girl and the girl is under the age of eighteen, it is termed rape.  The seventh clause states that if the offensive act is performed on a woman who was not in a position to consent at the time of the intercourse, the same will also be considered to be rape.

Prosecutrix not an accomplice

After the incident, a prosecutrix who claims to have been a victim of rape is not an accomplice. Because she is on a much higher pedestal than a wounded witness, there is no rule of law that her evidence cannot be relied upon without material particulars confirmation. A woman who is the victim of sexual assault is not a co-conspirator in the crime, but rather a victim of another’s lust, and thus her evidence does not require the same level of scrutiny as that of a co-conspirator. Her testimony cannot be accepted unless it is corroborated in material particulars, according to the Indian Evidence Act of 1872. She is unquestionably a competent witness under Section 118, and her testimony must be given the same weight as that of a victim of physical violence.

Consent

Consent refers to an activity done by a person under a free state of mind. According to Merriam Webster, consent refers to an act committed by a person by giving assent and approval. According to Section 375 consent can be referred to as an unequivocal voluntary agreement when a woman by communication, verbal, or non-verbal, shows her willingness to commit a specific act. The core concept under consent is choice, and not will.  To interpret consent, it is necessary to prove:

• The person can give consent; and
•  The person, with his free choice, has accepted the act. 

For example, if A has accepted to perform the construction of B’s house under his free choice, it would amount to valid consent.  Section 90 specifies two justifications that are analogous to compulsion and mistake of fact. The factors listed in the first part of Section 90 are from the victim’s perspective, whereas the second half of Section 90 enacts the same provision from the accused’s perspective. It is assumed that the accused knows or has cause to think that the victim’s permission was granted out of fear of injury or misunderstanding.  As a result, the second part of the provision emphasizes the person who gets the tainted consent’s awareness or reasonable belief. The requirements of both components should be fulfilled as a whole. In other words, the court must determine whether the consent was given under duress or misinformation, and the court must also be satisfied that the person performing the act, i.e., the alleged offender, is aware of the fact or has reason to believe that the consent would not have been given but for the fear or misinformation. This is the Section 90 scheme, which uses negative wording.

Capacity to consent

The person is said to be capable of giving a valid consent when:

1. The person should be of a sound mind:  The burden of proof would be on the person claiming this right. 

For example, A gives consent to B to sell his property to him when he was in an unsound state of mind, and later retracts from the agreement, then it cannot be enforced because the consent was obtained when he was not in a sound mind. 

1. The person should have attained the age of majority: In law, it is believed that minors are incapable of giving consent. 

For example, if A and B are in a sexual relationship where B is a minor girl, though the sexual activity is consensual, it would still amount to the offence of rape.

Types of consent

Section 90 of the Indian Penal Code mentions the meaning of free consent. Consent is not said to be free when a person is put under the fear of injury, or misconception of facts.  There are two types of consent:

1. Implied Consent: It is a type of consent given by the person in the form of actions. Consent can be given through gestures or various non-verbal communications. According to the legal dictionary, implied consent refers to the consent that is inferred from signs, actions, or facts, or by the inaction or silence. For Example,. A owns a firecracker shop.  When B enters his shop he gives an implied consent that he wants to purchase products from his shop. 
2. Express Consent: It is a type of consent that may be given by a person in an oral or written form. If it is express consent, it becomes easier to prove in the court of law. For example, A asks B to Purchase a property for him and if he agrees and says yes, then it is expressed consent. 

Consent on the promise of marriage

Consent might be expressed or implied, compelled or misled, freely given or obtained via deception. Consent is a rational act followed by contemplation, with the intellect weighing the good and evil on each side like a balance. There is a substantial difference between rape and consensual sex, and the court must carefully consider whether the accused had a genuine desire to marry the victim, or had made a false promise to that effect solely to fulfil his libido, as the latter falls under the category of cheating or deception. There is a difference between just breaking a commitment and not keeping a false promise. As a result, the court must determine whether the accused made a false promise of marriage at an early stage, and whether the consent was obtained after fully comprehending the nature and implications of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse with the accused because of her love and passion for him, rather than solely because of the accused’s misrepresentation, or where an accused was unable to marry her despite having every intention to do so due to circumstances he could not have foreseen or were beyond his control. These situations must be handled differently.  Only if the Court finds that the accused’s aim was malicious and that he had hidden motives can the accused be found guilty of rape, as has been the case in  Dhruvaram Murlidhar Sonar vs. State of Maharashtra (2019). When a man and woman were living together, sometimes at her home and sometimes at the man’s, and the evidence indicated that it was not a case of passive submission in the face of psychological pressure, and there was tacit consent that was not based on any misconception created in her mind, a complaint under Section 375 would be unworkable. As has been observed by the Apex Court in the landmark case of Uday vs. State of Karnataka (2003), if the accused’s promise is not false and was not made with the express goal of seducing the prosecutrix into engaging in sexual actions, the act(s) would not be considered rape. Thus, if the prosecutrix submits to the accused’s passion because she believes the accused is going to marry her, such a false act cannot be deemed to be consensual in terms of the accused’s offence.

Where consent need not be obtained

According to Section 92 of the Indian Penal Code where it is not possible for the person to give consent and the other person acts in good faith, there is no need to wait for the consent of the person. For example, If A is facing epileptics and bleeding, he is unable to give consent. Then if B, a surgeon, operated without A’s consent, During the operation A was declared dead, B cannot be held liable for his action because it was a case of emergency and the patient was unable to give consent. 

Will

The word refers to the reasoning power of the mind to determine whether to do an act or not. According to Merriam Webster, ‘will’ is defined as a thing that is done with desire or choice. In other words, an act of will refers to a desire to participate by a person without being under pressure or under the influence of any other person.  E.g. A instigated B to shoot C to which B willingly agreed and shot C. In this scenario, there was a clear will of B to shoot C though instigated by A he had a clear choice to say no. 

Act committed against the will

Will is a significant concept to prove the offence of rape. According to Section 375(1), where sexual intercourse is done against the will of the other person, amounts to the offence of rape. In the State of Uttar Pradesh vs. Chhotey Lal (2011) the Supreme Court explained the concept stating that an act done by a man against women despite her resistance or opposition.

Law against the will and without consent

Section 375 of the Indian Penal Code includes both the components it is an act that is committed against the will and an act committed against the consent of the women.  This section mentions the offence of rape. The word rape is derived from the Latin word “rapio” which means to seize in other words it refers to the ravishment of women without her consent. Recently in the year 2013, an amendment was passed in-laws of rape to safeguard the interest of innocent victims. 

Difference between ‘against her will’ and ‘without her consent’

Although the expressions against her will and without her consent may occasionally overlap, the two expressions in Clauses one and two of Section 375 have distinct connotations and dimensions. The phrase “against her will” usually refers to a male having sexual relations with a woman despite her protests and refusal. On the other hand, an act of reason accompanied by deliberation would be included in the statement ‘without her consent. It should be emphasised that the courts have applied the tests for establishing consent set forth in Section 90 of the IPC. As per Section 90, a consent is not such as is intended by any section of this Code if it is given out of fear of injury or a misunderstanding of facts, and the person doing the act knows, or has reason to believe, that the consent was given as a result of such fear or misunderstanding; or if it is given out of unsoundness of mind or intoxication, and the person doing the act knows, or has reason to believe, that the consent was given as a result of such fear or misunderstanding; or if the consent is given by a person who is under twelve years of age. In Holman vs. Queen (2010), it was stated that it must not be necessary for willingness to constitute consent. If a woman giving the consent is reluctant, hesitant, and grudging but she consciously permits the same, then such consent would be considered to be valid. A consent given under protest and tears would still be consent. For example, if a prostitute gives her consent for having sexual intercourse not because of her will but because of her constraint, her consent cannot be turned as invalid. Consent is therefore valid even if it is against the will.  In the State of Uttar Pradesh vs. Clottey Lala (2011), the Apex Court stated that the expression against her will and without her consent may overlap but they have different connotations and dimensions, the expression against her will would mean that that act is done by man despite her resistance and opposition. The other without her consent would mean an act done with deliberation. 

Essential of rape

• Against her will;
• Without her consent;
• Consent is obtained by force or putting a person of her interest under fear of death;
• Consent obtained by a misconception;
• Consent was obtained when the person was unsound, intoxicated, or under undue influence;
• Women under the age of eighteen with or without her consent;
• A woman who is unable to communicate her consent. 

Case law of essential of rape

1. Acts done against her will

Himachal Pradesh v. Mango Ram (2000) 

In this case, Prosecutrix was the eldest daughter Jagia Ram. The accused who was aged 17 years accompanied the prosecutrix. The accused caught her from behind and was forced to lie on the cowshed and committed a sexual act.  The Supreme Court held that the girl tried resistance to stop the accused from committing the act but the accused overpowered her and the act was committed against the will of the victim and was held liable for the offence of rape. 

2. Act committed against the consent

According to Section 375(2), an act of sexual intercourse committed against the will of the women amounts to the offence of rape. If the consent is not obtained freely then the other person can impose criminal liability. In the recent amendment in 2013 changes were made that if women claim that while having sexual intercourse there was no consent then the court shall presume the same.

Queen vs flattery (1877) 

In this case, the girl was in ill health and had gone to the accused’s clinic and she was advised to undergo a surgical operation to which she agreed while operating the accused had sexual intercourse with the girl. The court held that consent was not a valid one and was obtained through misconception. Thus accused liable for the offence of rape. 

3. Non-Valid Consent and associated case laws

Consent obtained under misrepresentation, fraud, or mistake: During the time of having sexual activity with a woman if consent is obtained misrepresentation, fraud, or mistake such consent won’t be held valid and the accused can be still held liable for the offence of rape.

Bhupender Singh v. Union Territory of Chandigarh (2008)

In this case, the accused had sexual intercourse with the prosecutrix through which she became pregnant and she had undergone an abortion. They again had sexual intercourse. The accused promised her that he would marry her again and she again became pregnant. Later, she got to know that the accused was already married and had children and in confrontation, the accused failed to perform his promise. She filed a suit against the accused.  The court held that the accused had sexual intercourse with the victim in a state of fraud and thus the consent of the victim is not a valid one and the accused was held liable under Section 375.

4. Consent obtained when the woman is intoxicated is of an unsound mind

A consent obtained during the state of unsoundness and intoxication cannot be termed as valid consent. 

Tulsidas Kanolkar vs State of Goa (2003)

In this case, the girl was not having a proper mental condition to give consent for sexual intercourse. The accused claimed the defence of valid consent.  The additional session judge holding the accused liable of the offence ordered rigorous imprisonment and a fine of 10,000. The High Court reduced the imprisonment to 7 years. The Supreme Court dismissing the appeal there was only mere submission and no consent. 

5. Consent obtained by putting a person of interest under fear of death is not a valid consent

If an interested person of a woman like children, parents, husband, etc is under fear of death and in that situation consent of a woman is obtained then it cannot be termed as valid consent.

State of Maharashtra vs Prakash (1992) 

In this case, the police officer and a businessman put the husband of the victim under remand where her consent was obtained to have sexual intercourse.  The court held that consent given by the women is not a valid one where a person of her interest is put under fear of hurt or death. Therefore they were liable for the offence.  A person not capable of communicating consent: If a man has sexual intercourse with a woman who is not able to communicate her consent would amount to the offence of rape.  E.g. If A is and B has sexual intercourse believing that she has conceived for the sexual act. Later A claims that she didn’t consent to that act then B would be liable for the offence of Rape. 

Exceptions to Section 375 

Section 375 of the Indian Penal Code, 1860 is furnished with two exception clauses, while the first one provides that a medical procedure or intervention shall not constitute rape, the second exception provides that sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.

Exception 1 : medical procedure or intervention shall not constitute rape

A medical procedure or intervention shall not constitute the offence of rape. This exception clause states that any medical intervention against women cannot be termed as an offence of rape under the court of law.

Exception 2 : sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape

By the 1949 Amendment to the Indian Penal Code, 1860, the age limit was increased from 15 to that of 18 years. There may be times when a legal check is required to prevent males from taking advantage of their marital rights prematurely. In such instances, the husband’s abuse will be covered by this clause. The Supreme Court ruled in Independent Thought vs. Union of India (2017), that sexual intercourse with a girl under the age of 18 is rape, regardless of whether she is married or not. Exception 2 makes an unnecessary and artificial distinction between married and unmarried girl child, according to the Court, and has no rational nexus with any specific goal attempted to be reached. This artificial distinction is in violation of Article 15(3) of the Constitution’s spirit and ethos, as well as Article 21 of the Constitution. It also goes against the idea behind some statutes, such as the girl child’s bodily integrity and reproductive choice.

Landmark judgments under Section 375 

Section 375 is one of the most talked-about sections nowadays due to the significant increase in the number of rape cases in India. Some of the landmark cases are as follows:

Rao Harnam vs Union of India (1957)

In this case, Kalu ram sent her wife aged 19 years to please the accused. The girl protested against this act of the husband but was later induced to surrender. The accused ravished her due to which she died immediately. The High Court observed that she surrendered her body to the accused under the pressure of her husband therefore the accused would be liable for the offence.  This judgment is a landmark because it explains the difference between consent and mere submission  the high court while pronouncing the judgment held that 

• A mere act of helpless, inevitable compulsion cannot be deemed as consent. 
• If the submission involves fear then the consent is not free. The Mere act of submission doesn’t involve consent.
• consent is said to have been given by the woman if she freely agrees to submit herself. It involves conscious and voluntary acceptance of what is proposed to be done.  

Mukesh & Anr. vs. State for NCT of Delhi & Ors. (Nirbhaya Gang Rape Case) (2017)

In this case, a young girl was returning home with her male friend after watching the movie and boarded a bus. Six people were there at the bus including the driver firstly knocked on the guy with the iron rod then she was brutally raped by all of them. Within 24 hours, they were arrested. The Supreme Court while pronouncing the judgment considered it as the rarest of the rare case and ordered the death penalty to the offenders.  This was a landmark judgment where the court observed it as the rarest of the rare case and ordered them with the punishment of the death penalty.  This case also generated a lot of public outcries which led to the formation of the JS Verma committee and various suggestions were suggested and finally an amendment was passed in the year 2013. 

State of Maharashtra v. Vijay Mohan Jadhav and Ors. (Shakti Mills Gang Rape) (2019)

In this case, a 22-year-old photojournalist was interning under English magazine in Mumbai she had gone to the Shakti mills compound near Mahalakshmi in south Mumbai the accused had tied her up with belts and brutally raped her. They didn’t stop there. They took the photos of the victim and threatened to release them. The session’s court awarded the accused a life sentence. It was further challenged by the victim and demanded the death penalty. The appellant court held that the accused would be liable for the death penalty if any leniency is shown towards the accused it would create a mockery of justice.  The case is considered a landmark one because the court highlighted the rarest of the rare case and awarded the accused the punishment of the death penalty. 

Tukaram and Anr. v. State of Maharashtra (1978)

In this case, Mathura was an 18-year-old orphan girl who was called to the police station on an abduction report filed by her brother. Mathura was kept late. She was forcefully taken to the toilet and was raped by a constable Ganpat and Molested by Tukaram they had bottled the door from inside. In the sessions court the accused were acquainted naming it as consensual sex. The decision was challenged in the Bombay High court which reversed the decision distinguishing between consent and passive submission and claimed that there was no consent and was a mere passive submission therefore they are liable. In the Supreme Court, they were acquainted with their charges and claimed that there were no marks and it was a peaceful affair. This judgment of the Supreme Court was heavily criticized thus after this judgment in an inquiry it was held that marks in the victim’s body are not important.  Recently the case that shook the whole country is the Nirbhaya rape case four decades ago the case that shook was the Mathra rape case. This case highlighted the flows existing in the existing criminal laws. A criminal law amendment was passed to nullify the effect of the judgment. Legal Changes 

• Changes were made in Section 376 of the Indian Penal Code. 
• Custodial Rape provision under Section 376(2) was added. 
• The Punishment was prescribed to a term not less than 10 years 
• Section 228A Indian Penal Code was added not to reveal the identity of the rape victims. 

Vishaka v. State of Rajasthan and Ors. (1997)

In this case, a social worker named Bhanwari who was contributing her effort in stopping child marriages was allegedly gang-raped by five men though a complaint was logged no investigation was initiated.  The trial court acquainted the accused due to a lack of medical evidence. A public Interest Litigation was filed on the issue of sexual harassment at the workplace. The court decided to give the judgment on international conventions right to work with human dignity is granted under Article 14, 19, 21 of the Indian constitution. In this case, certain guidelines were given by the Supreme Court; it is popularly known as Vishaka guidelines.  This case is a landmark judgment because this case leads to the formation of guidelines on sexual harassment at the workplace. Before this case, India didn’t have guidelines for the offence of sexual harassment at the workplace. These guidelines became legislation in 2013 in the name of sexual harassment at the workplace Act, 2013.  Legal changes: 

• Formation of sexual harassment Committee. 
• The committee should be headed by a women employee of the NGO. 
• The committee Should Guide the victim for further course of action.  

State of Maharashtra v. Madhukar Narayan (1990)

In this case, the accused went to the hutment of the prosecutrix and had forcible sexual intercourse the victim tried to resist him. In his defense he claimed that he had gone to the hutment because the lady engaged in the business of illicit liquor. She also had an extramarital affair. The Bombay High Court refused to impose a charge on the inspector. The Supreme Court held that the history of the women should not be taken into consideration and removed the inspector from his service. This case was a landmark because the court gave an important guideline that the history of the women should not be taken into consideration. By the virtue of Article 141 of the Indian Constitution, it is still binding on the lower courts. 

Independent thoughts v. Union of India (2017)

A writ petition was filed in the Supreme Court under Article 32 challenging the exception 2 mentioned under Section.375 which claimed non-consensual sex with wife above the age of 15 doesn’t amount to the offence of rape. The court observed that there is an artificial distinction made between married and unmarried girls without any reasonable nexus. Forcible sexual intercourse with wife leads to mental trauma. Therefore the court finally increased the age from 15 to 18.  This was a landmark Judgments it was one of the most significant steps taken to criminalize marital rape which is an exception under Section 375 and set a limit that non-consensual sexual intercourse with wife below 18 years would amount to the offence of rape.

The Supreme Court’s guidelines to prevent child sexual abuse

The Supreme Court of India, while deciding the case of Shankar Kisanrao Khade vs. State of Maharashtra (2013), laid down the following guidelines as a measure to prevent child sexual abuse:

1. If the persons in charge of schools/educational institutions, special homes, children homes, shelter homes, hostels, remand homes, jails, etc. come across instances of sexual abuse or assault on a minor child that they believe to have committed or come to know that they are being sexually molested or assaulted, or wherever children are housed, are directed to report those facts to the nearest Special Juvenile Police Units (SJPU) or local police. They, depending upon the gravity of the complaint and its genuineness, must take appropriate follow up action casting no stigma to the child or to the family members.
2. Persons in charge of the media, hotels, lodges, hospitals, clubs, studios, and photography facilities must comply with Section 20 of the Act of 2012 and give information to the SJPU or local police. Section 23 of the Act must also be rigorously followed by the media.
3. Physical, sexual, and emotional abuse are more common in children with intellectual disabilities. When institutions that shelter them or people in their care and protection come across an act of sexual abuse, they must report it to the Juvenile Justice Board/SJPU or local police, who will then contact the proper authority and take appropriate action.
4. Furthermore, it is made clear that if the perpetrator of the crime is a family member, extreme caution should be exercised and additional action taken in collaboration with the child’s mother or other female family members, keeping in mind that the child’s best interests are important.
5. If a hospital, whether public or private, or a medical institution where children are being treated learns that the children are being sexually abused, the matter will be immediately reported to the nearest Juvenile Justice (JJ) Board/SJPU, and the JJ Board, in consultation with the SJPU, will take appropriate steps in accordance with the law protecting the interests of children.
6. Non-reporting of a crime by anyone after learning that a minor child under the age of 18 has been subjected to any sexual assault is a serious crime, and by not reporting, they are shielding offenders from legal punishment. They will be held liable under ordinary criminal law and swift action will be taken against them.
7. If National Commission for Protection of Child Rights (NCPCR), State Commission for Protection of Child Rights (SCPCR), Child Welfare Committee (CWC) and Child Helpline, NGOs for Women’s Organisations, etc. receive any complaints, they may take further action in consultation with the nearest JJ Board, SJPU, or local police, as required by law.
8. The Central Government and State Governments are directed to establish SJPUs in all districts if they have not already done so, and to take prompt and effective action in consultation with the JJ Board to care for and protect children, as well as to take appropriate action against the perpetrator of the crime.
9. The Central Government and each state government should take all steps necessary to ensure that the provisions of the Protection of Children from Sexual Offenses Act, 2012 are widely publicised, including through television, radio, and print media, at regular intervals, so that the general public, including children and their parents and guardians, are aware of the Act’s provisions.

Section 376 of the Indian Penal Code, 1860

The 1983 Amendments to the rape laws in India were prompted by the acquittal of police officers in the infamous Mathura Rape Case and widespread protests against the judgement. Sections 375 and 376 of the Indian Penal Code, 1860 were considerably altered by the Criminal Law (Amendment) Act, 1983. The same Act also included numerous new sections to the Penal Code, such as;

• Section 376A: Punishes sexual intercourse with wife without her consent by a judicially separated husband.

• Section 376B: Punishes sexual intercourse by a public servant with woman in his custody.

• Section 376C: Punishes sexual intercourse by Superintendent of Jail, Remand Home, etc., with inmates in such institutions

• Section 376D: Punishes sexual intercourse by any member of the management or staff of a hospital with any woman in that hospital.

• Section 376E: A repeat rape offender will have to be imprisoned for the rest of his life or sentenced to death.

These new sections were created in order to prevent sexual abuse of women in custody, care, and control by a variety of people who, while not committing rape, were nonetheless regarded morally immoral. For the crime of rape, the modified Section 376 of the 1860 Code stipulated a minimum sentence of seven years in jail. A minimum penalty of ten years in prison has been imposed to combat the vices of custodial rape, rape on pregnant women, rape on girls under the age of twelve, and gang rape. However, courts in either case could impose a term less than seven or ten years for extraordinary reasons to be stated in the judgement. Section 114A of the Indian Evidence Act, 1872 by raising a presumption as to absence of consent in cases of custodial rape, rape on pregnant women and gang rape as in clauses (a), (b), (c), (d), (e) and (g) of sub-section (2) of Section 376, merely on the evidence of the ravished women had, at least partially, removed the infirmity from the evidence of a victim of rape that was hitherto unjustly attached to her testimony without taking note of the fact that in India, a disclosure of this nature was likely to ruin the prospect of the girl’s rehabilitation in society for all times to come and unless her story was painfully true she would not have taken such a grave risk merely to malign the accused. 

Is Section 376 of the Indian Penal Code, 1860 a gender-neutral provision

Section 376 is not gender-neutral, and thus does not cover sexual abuse of minor males. The penalty under the Protection of Children from Sexual Offenses (POCSO) Act of 2012 remains 10 years to life imprisonment for offences against boys under the age of 12 and seven years to life imprisonment for offences against boys between the ages of 12 and 18. The law modified the Code of Criminal Procedure, 1973 (CrPC) to reduce the time required to complete an investigation from three to two months. Anticipatory bail is likewise prohibited in situations of rape of minor girls under the age of 16. Any appeal against a rape sentence must be resolved within six months.

Changes made in Section 376 post Delhi gang rape case, 2012

Following a vicious gang rape of a woman in Delhi’s capital city in 2012, the Verma Committee was formed, whose recommendations led to significant reforms in rape law. Some recommendations, such as not raising the consent age to 18 from 16, as it was previously, introducing matrimonial rape, and not requiring sanction for prosecution of armed personnel, were not accepted. But the law changed in regards to:

1. Consent when Section 114A of the Indian Evidence Act, 1872 was enacted,
2. Prohibiting questions in cross-examination of the victim about previous sexual experience or immoral character,
3. Making the issue of previous sexual experience irrelevant, and 
4. Certain other procedural aspects in the Code of Criminal Procedure, 1973 inter alia, relating to an investigation by woman police officers, video recording of statements before magistrates, the time limit for completing of inquiry, the requirement of trial proceedings in camera, etc.

Kathua Rape Case and the Criminal Law (Amendment) Act, 2018

1. Following public outrage over the alleged gang rape and murder of an eight-year-old girl in Rasana village near Kathua in the state of Jammu and Kashmir, the Criminal Law (Amendment) Act, 2018 amended Chapter XVI of the Indian Penal Code, 1860 to provide for harsher penalties for rape perpetrators, particularly those targeting girls aged 12 to 16. 
2. Rape against a woman under the age of 12 is now punishable by rigorous imprisonment for a duration of not less than 20 years, but which may extend to life imprisonment, as well as a fine or death. 
3. Gang rape of a woman under the age of 12 is now punishable by life in jail, a fine, or death. 
4. Rape of females under the age of 16 is punishable by up to 20 years in prison or life in prison. Life imprisonment means that the person will be imprisoned for the rest of his or her natural life. The minimum sentence for rape of a female over the age of 16 is ten years in prison.

Medical examination of accused and victim in cases of rape

Medical examinations of the victim and the accused shortly after the incident often produce a plethora of corroborative evidence in cases of rape or attempted rape. As a result, such an opportunity should not be overlooked. Though the prosecutrix can only be questioned with her assent, the accused can be questioned under Section 53 of the Criminal Procedure Code of 1973. It should also be remembered that the accused, under Section 54 of the 1973 Code has the right to request such an examination if he believes it will disprove the charge levelled against him. Because smegma (thick, white, cheesy substance that collects under the foreskin of the penis) is wiped off during intercourse, the presence of smegma on the accused’s corona glandis (glans penis) soon after the incident is proof against complete penetration. Smegma must, however, be examined within 24 hours to be of any use.

The two fingers test concept

1. Rape survivors’ right to privacy, physical and mental integrity, and dignity are all violated by the two-finger test and its interpretation. As a result, even if the report is positive, this test cannot ipso facto lead to a presumption of consent. 
2. Rape survivors are entitled to legal recourse that does not re-traumatize them or violate their physical or mental integrity and dignity, as stated in the International Covenant on Economic, Social, and Cultural Rights of 1966 and the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power of 1985. They also have the right to have medical procedures carried out in a way that respects their right to consent. 
3. Medical operations should not be carried out in a way that is cruel, inhumane, or demeaning, and health should always take precedence when dealing with gender-based violence. The state has a legal obligation to provide such services to sexual abuse survivors. There should be no arbitrary or unlawful interference with his privacy, and proper precautions should be made to safeguard their safety.

What needs to be done when the defence that the girl was of easy virtue is taken 

The fact that the rape victim was previously accustomed to sexual intercourse cannot be the deciding factor. On the contrary, the question of whether the accused raped the victim on the occasion in question remains unanswered. Even if the victim has previously lost her virginity, this does not give anyone permission to rape her. It was the accused, not the victim, who was on trial. In a rape case, whether the victim is a promiscuous individual is irrelevant. Even a lady of easy virtue has the right to decline to engage in sexual activity with anybody and everyone because she is not a vulnerable object or prey for sexual attack by anyone. A prosecutrix has a greater status than an injured witness since the latter suffers psychologically and emotionally, while the former suffers physically. In Narender Kumar vs. State (NCT of Delhi) (2012), the Supreme Court considered a case in which the rape victim was accused of being an unchaste woman with an easy virtue. The Court discussed Rajoo vs. State of MP (2008), and decided that where the prosecutrix’s evidence is read in its entirety and judged to be worthy of reliance, the prosecutrix’s statement alone is sufficient to record a conviction. The occurrence gives the victim enormous distress and embarrassment, but a false claim of rape can surely inflict the accused the same distress, humiliation, and damage. The Court went on to say that while some information exist indicating the victim’s proclivity for sexual intercourse, this cannot be used to infer that she was of “loose moral character.” This cannot be used as justification for her being raped; she also has the right to maintain her dignity by refusing to engage in sexual activity with anyone. A woman’s evidence cannot be dismissed just on the basis of her simple virtue; rather, it must be cautiously appraised.

Exploring rape cases through landmark decisions 

Suicide by victim

In the case of State of Karnataka vs. Mahabaleshwar Gourya Naik (1992), it was decided that the non-availability of the victim in a rape case was to be determined to be no reason for acquittal where the victim committed suicide before the trial and was not available for examination. The other evidence available had confirmed the accused’s guilt in this case. The accused was found guilty under Sections 375 and 511 of the Indian Penal Code, 1860 since the evidence proved at least an attempt to rape, if not rape.

Absence of injury

It is true that harm is not a requirement for determining whether or not rape has occurred. However, each case’s factual matrix must be considered. It was noted in Pratap Misra vs. State of Orissa (1977), where there was a claim of rape by numerous people at different times, but no evidence of harm. If the prosecutrix’s statement is plausible, the presence of injuries is unquestionably relevant, and no confirmation would be required. However, if the prosecutrix’s version is not credible, verification is required.

Corroboration of testimony

In the case of Rameshwar vs. The State of Rajasthan (1952), the Supreme Court had decided that a woman who has been raped is not an accomplice. If she was raped, it was an atrocity, but if she consented, there was no rape. In the instance of a girl under the age of consent, her consent will not be considered in the case of rape, but if she consented, her testimony will be considered suspect as that of an accomplice. The real rule of prudence requires that the judge consider the possibility of corroboration in every situation of this nature, and that this be noted in the verdict. The judge, on the other hand, can forgo corroboration if he believes it is safe to do so in the particular circumstances of the case at hand.

Conviction on sole testimony of prosecutrix

In the case of Ramdas vs. State of Maharashtra (2007), the Supreme Court of India had observed that a conviction based only on the prosecutrix’s evidence is valid if the Court is convinced of the prosecutrix’s truthfulness and there are no circumstances that cast doubt on her veracity. Insisting on corroboration, save in the most exceptional of circumstances, equates a victim of another’s lust with an accomplice to a crime, and therefore insults womanhood.

Rape by police constable

In the case of Visveswaran vs. State of Tamil Nadu (2003), the Supreme Court had opined that the identity of the accused was confirmed by the fact that he was arrested from the hotel. A police constable reportedly raped the woman in a hotel room in this case. She couldn’t identify him and there was no test identification parade. During the trial, the accused was unable to provide an explanation for his whereabouts at the time of the crime. The Apex Court, while observing that in such cases courts must take a different approach, held that  minor inconsistencies or disparities, as well as a flawed inquiry, should not sway the Court.

Rape and conspiracy for rape

In the case of Moijullah vs. State of Rajasthan (2004), the Supreme Court of India was considering a case that involved four accused persons who tried to seduce young schoolgirls with their wealth and pretensions of friendship, then sexually exploited and raped them. Two of them committed rape, the third made overtures to one of the victims, and the fourth, who was also a driver, drove them to the farmhouse, where they were exploited. Witnesses corroborate their actions. Section 376 led to the conviction of two of them. The third and fourth defendants were found guilty under Section 376 read with Section 120-B (conspiracy), notwithstanding the fact that all co-conspirators did not act in the same manner. Their life sentence was commuted to ten years of supervised release.

Charge not proved

In the 2003 case of Sudhansif Sekhar Sahoo vs. State of Orissa, which appeared before the Apex Court, the prosecutrix was a well-educated and employed woman. She travelled a considerable distance in the accused’s jeep at night in order to meet her superior officer. She claimed that when they stopped at the accused’s place, he raped her. This being quite a rare behaviour, there was no convincing justification given for meeting the officer late at night. Her garments were free of sperm or bloodstains. She claimed virginity, but medical evidence revealed that she was a sex addict. The accused was granted the benefit of the doubt.

Unchaste woman

According to the Supreme Court, a woman’s unchastity does not make her “open to any and every person to violate her person as and when he desires.” Her evidence cannot be tossed overboard simply because she is a woman of easy virtue. At most, the officer tasked with evaluating her evidence would be compelled to exercise caution before accepting her testimony. The Apex Court made this decision in the case of State of Maharashtra vs. Madhukar N Mardikar (1991). In another case of the State of Uttar Pradesh vs. Om (1999), the Supreme Court ruled that the prosecutrix’s lack of moral character, her use of sexual intercourse, and the possibility that she went to the accused herself were not grounds for disbelieving her statement.

Rape and grievous hurt

A recent case of Rajesh vs. State of Madhya Pradesh (2017) that appeared before the Apex Court involved an accused who had the victim girl (seven years old), in his care and custody, and he perpetrated natural and unnatural sexual actions on her over a period of time. The injuries sustained by the accused on the day of the incident were to the head, hand, or thumb, and so could not have been the cause of death for the girl. In such a case, the accused’s responsibility for the conduct of the act under Section 302 of the Indian Penal Code, 1860 would be seriously questioned. The Court held that the accused should be found responsible under Section 325 of the Indian Penal Code, 1860. As a result, the conviction was changed under Section 302 to one under Section 325, while preserving the conviction and penalties issued under Sections 376 (2) (f) and 377 of the Code. As a result, the death penalty was reduced, and accused was sentenced to seven years in prison.

Offences comparable to rape and indecent assault

In the case of R v. Eskdale (Stuart Anthony) (2002), the accused had challenged a sentence of nine years in jail given after pleading guilty to harassing the public by making threatening, obscene, and harmful phone calls. Over the course of two weeks, he made around 1000 phone calls to 15 complainants. The calls were made for his sexual enjoyment, and he had threatened his victims with rape or significant physical pain if they did not perform sexual activities against themselves. He had already been convicted of sending abusive and indecent material through the telephone system. It was decided that the sentencing court was correct in concluding that the accused’s crimes were akin to rape and indecent assault. His prior convictions, as well as a pre-sentence report and a psychiatric report, showed that he posed a continuing and rising threat to women. As a result, the penalty handed down was not excessive.

Assistance to rape victims : Supreme Court guidelines

The Supreme Court found in Delhi Domestic Working Women’s Forum vs. Union of India (1994) that in rape cases, the investigating agency, as well as the subordinate courts, sometimes adopt a completely indifferent attitude toward the prosecutrix, and as a result, the Supreme Court issued the following directions in order to assist rape victims:

1. Legal representation should be offered to complainants in sexual assault cases. It’s critical to have someone who knows how the criminal justice system works. The victim’s advocate’s role would include not only explaining the nature of the proceedings to the victim, preparing her for the case, and assisting her in the police station and in court, but also directing her to other agencies for help of a different nature, such as mental health counselling or medical assistance. It is critical to ensure continuity of support by ensuring that the same individual who represented the complainant’s interests at the police station continues to represent her throughout the case.
2. As the victim of sexual assault may be distressed when she arrives at the police station, legal assistance may be required. The direction and support of a lawyer at this time, as well as while she is being questioned, would be extremely beneficial to her.
3. Before any questions were made to the victim, the police should tell her of her right to representation, and the police record should state that she was so told.
4. For victims who do not have a lawyer in mind or whose own counsel is unavailable, a list of advocates prepared to act in these circumstances should be kept at the police station.
5. The advocate will be appointed by the court at the earliest possible time, upon application by the police, however advocates will be authorised to function at the police station before seeking or obtaining leave from the court, in order to ensure that victims are questioned without excessive delay.
6. In all rape trials, the victim’s confidentiality must be preserved to the extent possible.
7. The establishment of a Criminal Injuries Compensation Board is required in light of the Directive Principles established in Article 38(1) of the Indian Constitution. Victims of rape frequently suffer significant financial losses. Some people, for example, are too traumatised to return to work.
8. The court will provide compensation to victims if the criminal is convicted, and the Criminal Injuries Compensation Board will award compensation whether or not the offender is convicted. The Board will consider pain, suffering, and shock, as well as lost wages owing to pregnancy and childbirth expenditures if the rape resulted in these events.

Furthermore, the state authorities, particularly the Director General of Police and the State’s Home Ministry, have an obligation to issue proper guidelines and instructions to other authorities on how to deal with such cases and what kind of treatment the prosecutrix should receive, as a victim of sexual assault requires a completely different kind of treatment not only from society but also from the state authorities. The doctor who examines the rape victim must exercise caution. In most cases, a female doctor should evaluate the rape victim.

Loopholes to Section 375 of the Indian Penal Code, 1860

Section 375 read with Section 376 of the Indian Penal Code, 1860 comes with a set of drawbacks which is why the law has till now failed to curb the growing numbers of rape cases in the developing land of India. Three significant loopholes that these provisions have been wearing since 1860 have been discussed hereunder. 

Restricted definition of the term ‘rape’

“Sexual intercourse by man with his own wife, the wife not being under 15 years of age, is not rape,” says Section 375 of the Indian Penal Code, 1860 which has some very antiquated beliefs as its exception clause. Rape is punishable under Section 376 of the Indian Penal Code, according to which, the rapist should be punished with imprisonment of either description for a term of not less than 7 years but not less than life or for a term of up to 10 years, as well as a fine, unless the woman raped is his own wife and is not under the age of 12, in which case he should be punished with imprisonment of either description for a term of not less than 2 years, fine, or both. In light of the current situation, it is necessary to shift human perceptions and add a new dimension to the concept of rape. Almost all offences should have a clear interpretation rule set so that there are no loopholes or opportunities for injustice in the social environment. The recent modification in the concept of rape is owing to an increase in such conduct and a more lenient interpretation of the law.

Marital rape : a debatable concern

On May 11, 2022, the Delhi High Court issued its long-awaited decision on the criminalisation of marital rape. The bench couldn’t decide whether a sexual act committed by a man on his wife without her consent should be regarded a criminal or not, therefore it issued a divided decision. The Supreme Court will now hear the case, which is still unsettled. The case is around Exception 2 of Section 375 of the Indian Penal Code, which provides that any sexual act performed by a man on his own wife, even if done without her consent, is not rape as long as she is not a minor.  If statistics in this regard is given a chance to be viewed then according to the National Family Health Survey 5 (2019-2021) study, 18% of Indian women are unable to tell their husbands ‘no’ when they do not want to participate in sexual intercourse with them. According to the report, over one-fifth of married women in India had their permission in sexual intercourse with their spouses revoked. With such terrible statistics and conflicting judicial opinions, all one can expect in this regard is progressive and rational thinking in regard to marital rape in India.

Adult male victims of rape: need for legal recognition in India

Recognising male victims of sexual abuse as a distant reality has been overlooked by framing sexual violence as a feminist issue. The absence of legal action against male sexual victimisation is mostly due to decreased reporting of male sexual violence and victims’ reluctance to come forward. If a male is sexually assaulted by another male, Section 377 of the Indian Penal Code, 1860 applies; but, if he is assaulted by a girl, no particular legal provision exists. It is critical to pay close attention to the definitions, categories, and types of sexual victimisation that need to be altered in order to minimise gender prejudice.

Conclusion

India is a country where women enjoy a high social status, but we still lack strict protections for them. We have a number of laws in place to protect their lives, but they appear to have numerous loopholes. Rape is considered the most horrific crime perpetrated against women, and statistics show that rape is very common in India.  There is a significant difference between will and consent. There is a proper definition of consent under the Indian Penal Code. On the other hand, the will is still not being clearly defined. Due to no proper definition consent and will is being interpreted as the same thing and therefore the decision passed by the court is vague and no proper justice is being served to the victim. Therefore there is a dire need to introduce a formal definition of a will under the Indian Penal Code. Section 375 of the Indian Penal Code is one of the talked about sections due to the increase in the number of rape cases in India in the amendments brought in the past few years have brought significant changes in the section but still there are quite many existing flaws which need to be addressed.  We have numerous regulations in place to regulate such horrible crime, but when it comes to implementation, we either lack someplace or need to make an effort to control it. As a result, the crime is interpreted in a variety of ways, which can lead to a miscarriage of justice. The same needs significant changes which can be achieved by changing legislative minds. 

References

[1]https://www.merriam-webster.com/dictionary/consent#:~:text=%3A%20permission%20for%20something%20to%20happen,consent.  [2]https://www.merriam-webster.com/dictionary/willing#:~:text=Definition%20of%20willing,without%20reluctance%20a%20willing%20sacrifice (3] http://ili.ac.in/pdf/php.pdf.  [4]https://blog.ipleaders.in/shakti-mills-rape-case/. [5]http://ili.ac.in/pdf/php.pdf.

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