This article is written by Darshit Vora of Narsee Monjee Institute of Management Studies. 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.
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.
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.
Capacity to consent
The person is said to be capable of giving a valid consent when:
- 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.
- 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:
- 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.
- 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.
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.
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.
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.
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.
The two prominent essentials of rape are:
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 v. Chhotey Lal (2011) the Supreme Court explained the concept stating that an act done by a man against women despite her resistance or opposition.
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.
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.
Facts: 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.
Types of Non-Valid Consent
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.
Facts 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.
Judgment: 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.
Consent obtained under the false assumption of marriage: Where sexual intercourse happens between man and woman where she is made to believe he would marry her but he fails to perform the promise would constitute the offence of rape.
In this case, the accused forcibly had sexual intercourse with the prosecutrix. He consolidated her by assuring that he would marry her. After which she again had sexual intercourse. The accused failed to perform his promise. A suit was filed against him on the charge of rape.
Judgment: False promise to marry her by the accused and having sexual intercourse would amount to the liability of rape. The court then accused never wanted to marry the victim was merely a hoax. Thus the accused is liable for the offence of rape.
Consent obtained under the misconception that the person is the husband: If a woman gives consent to the person believing that he is her husband in that scenario such consent won’t be held valid and the person can be charged with the offence of rape under the Indian Penal Code.
Consent is given by a girl below the age of 16: It is being assumed that the girls below the age of 16 years are not capable of giving valid consent. According to Section375(6) if sexual intercourse is committed by a person with or without the consent of the women would amount to the offence of statutory rape.
Earlier the age was below 16 years but after the criminal amendment Act, 2013 the age is being increased to 18 years.
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.
Facts: 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.
Judgment: 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.
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.
Facts: In this case, the police office r and a businessman put the husband of the victim under remand where her consent was obtained to have sexual intercourse.
Judgment: 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.
Punishment for Rape
The offence that is committed would be non-bailable, non-compoundable, and a cognizable offence. That would lead to an imprisonment of at least seven years and extend to life imprisonment along with a fine. A person commits an offence of gang rape, custodial rape would be liable for punishment not less than 10 years extending to life imprisonment and with a fine.
Difference between without her consent and against her will under Section 375
There is a significant difference between an act committed against the will and an act done against the consent of the women. It is many times considered as they are synonymous with each other but they are not.
An act done by a person willing would mean that the person has consented the act. While on the other hand an act done with consent cannot necessarily be interpreted as an act done with his will.
E.g. A asked B to have sexual intercourse with him but she declined it. Due to the constant pressure imposed by A, B agreed. In that scenario, she consented but the act was not done willingly.
In Holman vs Queen, it was stated that it must not be necessary for willingness to constitute consent. A woman giving the consent would be reluctant, hesitant, and grudging but she consciously permits then it is consent. 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 but 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 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.
In Dileep Singh vs State of Bihar, the court has interpreted as consent and will often interlace and an act done against the will cannot be said as an act done against consent. Under the Indian Penal Code, they are two expressions under two different heads.
From the above cases, the court has clearly explained the difference between the two though they both are the essential ingredient under Section 367(5) they don’t mean the same.
Exceptions to Section 375
There are two exceptions to the offence of 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.
It mentions that a man cannot be held liable under the offence if he has sexual intercourse with his wife. The section presumes that marriage is an implied consent given by the wife to the husband. There is a provision to this exception which mentions that sexual intercourse with a wife below the age of 15 is not an offence. Recently in Independent thoughts vs Union of India, the court increased the age from 15-18 years.
Shree Kumar v. Pearly Karun (1998)
Facts: In this case, a suit was filed against the husband on the change of marital rape by his wife. At the time of having sexual intercourse, they weren’t in judicial separation. The court mentioned at the time of sexual intercourse the wife was not living separately from his husband such sexual intercourse doesn’t involve the offence of rape. The husband was not held liable for the offence and observed that rape within marriage is not possible.
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)
Facts: 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.
Facts: 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.
- Articles inserted were Section 354A(Sexual harassment), Section 354B (Use of criminal force against women), Section 354C (Voyeurism), Section 354D (stalking), Section 376E(Punishment of repeat offenders) and Section 53A.
- Amendments were made in the various article where Section 354 (Outrage women Modesty), Section 26 (Offence are triable), Section 160 (Information in cognizable cases), Section 161 (Examination of witnesses), Section 197(Prosecution of Judges and Public Servants), Section 273 (Evidence in presence of accused).
- Substitution of various articles of Section 375, Section 376, Section 376A, 376B, 376C, 376D.
Facts: 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.
Facts: 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.
Judgment: 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.
- 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.
Facts: 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.
Judgment: 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.
- 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.
Facts: 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.
Judgment: 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.
Facts: 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.
Judgment: 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
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.
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