This article is written by Sneha Singh, a student at Dr. Ram Manohar Lohia National Law University. This article talks about Section 375 of IPC and focuses on the important judgments related to it.

Overview of Section 375 

Section 375 of the Indian Penal Code defines that a man is said to commit the offence of rape when:

• There is penetration by him or any other person of the penis to any extent into the vagina, mouth, urethra or anus of women or makes her do so with him or any other person.
• There is an insertion by him or any other person of any object or a part of the body, not being the penis into the vagina, the urethra or anus of women or makes her do so with him or any other person.
• There is manipulation by him or any other person into any part of the body of women so as to cause penetration into the vagina, urethra, anus or any other part of the body of women or makes her do so with him or any other person.
• There is an application by him or any other person his mouth to the vagina, anus, urethra of women or makes her to do so with him or any other person.

 And the circumstances under which the man would be liable for rape are as follows:

• First, that the act was against her will which means that whether the act is done under the reasoning power of the mind or not.
• Second, that it was done without her consent which means that there was no communication either with words, gestures or any other non-verbal communication.
• Third, when there is consent but such consent is obtained by putting her or any other person in whom she has an interest in fear of death or hurt.
• Fourth, when the woman gave consent thinking that the person is her husband to whom she is legally wedded and the man is aware that the consent was given to the husband and not to him.
• Fifth, when there is consent by the women but while doing so she was unable to understand the true nature and consequences of her consent the reason may be due to unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying unwholesome substance.
• Sixth, with or without consent when the women are under 18 years of age.
• Seventh, when the women are unable to communicate consent.

Also, if a woman is not physically resisting to penetration will not mean that she is consenting to the sexual activity.

Exceptions to Section 375 

There are two exceptions provided under the section. They are:

Exception 1: When there is medical treatment or intervention it shall not constitute rape.

Exception 2: When there is sexual intercourse or any sexual act by a husband with his own wife who is above 15 years of age is not considered to be rape.

Objective of Section 375

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

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

Punishment 

The punishment for rape is provided under Section 376 of IPC. Section 376(1) of the IPC states that whoever except in cases provided under sub-section (2) commits rape should be liable to be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine. The person is not liable if the woman is his wife and is not under twelve years of age. 

Landmark judgments

Independent Thought v Union of India

Facts

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

The Criminal Law (Amendment) Act, 2013, increased the age of consent for sexual intercourse from 16 to 18 years. But the Exception 2 mentions non-consensual sex of a husband with his wife and for that, the age is above 15 years. The POCSO Act 2012 set the age of consensual sex as 18 years. Exception 2 is contradictory to Section 3 of the POCSO Act which has criminalised penetrative sexual assault.  

Judgment

The Division Bench gave the following judgment while discussing all the relevant issues related to the case:

• The exception 2 discriminates between a married girl child and an unmarried girl child without any reasonable nexus. It violates the bodily integrity, dignity and reproductive choice of a girl child.
• The Parliament has increased the age for giving consent, the age from marriage to 18 years. So the age of 15 years in exception 2 is unreasonable, unjust, unfair and violates the right of the girl child.
• The exception 2 states that sexual intercourse or sexual act by a man with his wife is not rape if she is above 18 years.

Mukesh & Anr. v State for NCT of Delhi & Ors.

Facts

The case is famously known as the Nirbhaya case. In this case, a 23 year old medical student was returning after a movie with her friend and took a bus. In the bus, she was gang-raped by six people and was brutally assaulted. After the rape, she along with her friend were thrown out of the bus naked. The girl died while she was being treated in a hospital in Singapore.

Judgment

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

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

Harpal Singh & others v. State of Himachal Pradesh

Facts

In this case, the prosecutrix who was a girl under 16 years was sent by her mother to visit her ailing aunt in the village. While she was going the accused came to her and told her that her brother was lying sick in the dispensary. She rushed with him, there he along with two others locked her in a room. After that, they committed sexual intercourse with her against her will. She was later rescued by her family who decided to keep quiet. The matter was later on published in a newspaper and the police started the enquiry. The accused held that the girl was used to sexual intercourse and gave consent for the same.

Judgment

The Supreme Court found enough evidence which proved that she was under 15 years old during the sexual intercourse and as such her consent was no consent at all. The accused were held liable for rape under Section 376 of the Indian Penal Code.

Tulsidas Kanolkar v. The State of Goa

Facts

In this case, the victim was mentally impaired. The accused took advantage of her mental situation and had sexual intercourse with her. No one was aware of it until the family of the victim found out that she was pregnant. When asked who took advantage of her she pointed fingers towards the accused. The case was filed against him where he took the plea of consent in the form of submission to the act.

Judgment

It was held that the accused took advantage of the mental retardation and helplessness of the patient. In such a scenario no question of consent arises because a mentally challenged girl cannot give consent. And submission does not imply consent which can also be due to fear or vitiated by duress or impaired due to mental retardation. The accused was asked to pay a fine of Rs. 10000 and punishment with 10 years of imprisonment.

Bhupinder Singh v. Union Territory of Chandigarh

Facts

In this case, the accused and the victim worked in the same bank. After some time they married and started cohabiting in 1990. The victim was pregnant in 1991 and was asked to abort her child. She again became pregnant and during that time she learned from one of her husband’s friends that he was already married before marrying her. She tried to contact the accused after this but he was nowhere to be found. She filed a complaint against him.

Judgment

The Punjab & Haryana High Court held the accused liable under various sections of IPC including Section 376 for rape. The women had sexual intercourse with him only due to the reason that she considered him as her husband but in reality, he was not her legal husband.

State of Maharashtra v. Prakash

Facts

In this case, the victim with her husband had gone to her village to attend the Ganpati festival. The accused was a police constable who went to the village for bandobast of the festival and the other one was a businessman residing in the same village. The husband of the victim was called by the businessman to his house and then he summoned the victim too. The victim’s husband was beaten and she was raped by the police constable followed by the businessman. When the case was filed the accused raised the claim that there were no signs of resistance on the part of the women so they can’t be held liable for forced intercourse.

Judgment

The Bombay High Court stated that the police constable created fear in the mind of those poor labourers. The sexual intercourse was neither out of love nor for money so the only reason which remains is that she was coerced. As mentioned in the third part of the circumstances given in Section 375 that the consent can also be taken by putting the life of another person in whom the victim had an interest in fear of danger. Also, it is given that the victim’s husband was beaten. Both of them were held liable under Section 376 for rape.

Dileep Singh v. State of Bihar

Facts

In this case, the accused and the victim were neighbours. They fell in love and the accused forced the girl for sexual intercourse. He promised her that he would be marrying her and continued to have sexual relations with her. The girl’s parents came to know when she became pregnant so they reported against him. He said that he never forced the girl and she was the one who consented.

Judgment

The man was held liable under Section 375 of IPC for rape. The judges said that the consent of the girl for sexual intercourse was obtained by fraud as he promised to marry her. The consent which is obtained by fraud committed with the victim is no consent.

State of Punjab v. Gurmit Singh

Facts

In this case, the girl was in class 10th and her final exams were going on. She was returning back home after her exam when she was abducted in a van by the accusers. They took her to a tubewell kothi which belonged to one of them and all three of them committed rape on her. She was asked to remain silent and if she resisted or raised an alarm she would be killed.

Judgment

The court held the three of them liable for rape under Section 376 of IPC as at no point of time she willingly consented to the act. Also, the Apex Court laid down certain guidelines for trials in such cases:

• The delay in lodging an FIR is immaterial if it is properly explained.
• The testimony of the victim is vital in cases of sexual assault and if there is no special; reason to look for corroboration of her statement, the accused can be convicted on prosecutrix’s statement alone.
• The trial of sexual offence cases should be held in camera and by a lady judge.
• The Court should not make any observation that probably the prosecutrix is of loose character.
• The Court also has to see the victim is not getting harassed and humiliated in cross-examination during the trial.

Conclusion

There are so many cases of rape which are not even reported to the police. Although many guidelines are made, the punishments are made stricter but still, there is a rise in the number of cases. The reason is that women are not well aware of their rights and also those who are victims hesitate to come forward and report such incidents. It is very important for the society to understand that the victims are nowhere at fault so they don’t deserve to be ostracised by the society rather people should support the victims to start a new life. When the thinking of the people about the rape incidents will change then only the various laws which are made can be implemented properly.

References

• https://blog.ipleaders.in/consent-will-emphasis-section-375-ipc/
• https://www.scconline.com/blog/post/tag/section-375-ipc/#:~:text=%E2%80%9CSection%20375%20IPC%3A%20Rape&text=Fourthly%20%E2%80%94%20With%20her%20consent%2C%20when,herself%20to%20be%20lawfully%20married.
• https://www.casemine.com/search/in/375%2Bipc
• https://www.barandbench.com/columns/rape-by-a-false-promise-to-marry-a-caselaw-non-offen

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