This article is written by Diksha Paliwal. The article discusses in detail the legal framework and jurisprudence as enunciated in the Indian Criminal Law for the punishment of rape. It provides a comprehensive analysis of the relevant provisions pertaining to rape and the crucial factors to be taken into consideration while awarding the punishment for rape. Further, it deals with the recent legislative amendments and the lacunas that are acting as a hindrance in the delivery of justice to the victims of rape. In the end, it deals with certain suggestive measures to increase the effectiveness and implementation of the laws relating to rape in criminal jurisprudence. 

It has been published by Rachit Garg.

Table of Contents

Introduction 

As said by Justice Krishna Iyer and I quote, “When a woman is ravished what is inflicted is not merely physical injury, but ‘the deep sense of some deathless shame.” While there has been an increase in celebration of the rights of women in all spheres in this modern world, the concern for protecting her dignity and honour appears to be waning. Rape is not just a crime that inflicts physical injury but rather completely shatters women from the inside, leaving a wound that can never be healed and a void that no one will ever be able to fill. 

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As written in the book titled ‘The Philosophy of Criminal Conduct’ by Donald A. Andres & James Bonta, “Rape, as it is generally defined, is an untoward, unwanted and non-consensual sexual act or behaviour of a man towards a woman or another man.” An act of gross violation of the autonomy of one’s body is what the heinous crime of rape is. The rising crime rates against women substantiate the poor condition of the safety of women in India. There has been a consistent rise in crime against women in the past few years. Around 4.38 lakh cases of crime were registered in the year 2021, reflecting a horrifying and disconcerting escalation of a 15.3% increase in cases as compared to 2021.

It is pertinent to note here that the author in no way indicates that women are the only victims of the heinous offence of rape. In the past few years, cases of rape against men have also been registered, and a number of women have been found guilty of violating the sexual autonomy of men. In a survey, it was found that around 14% of the reported victims of rape are male. However, the prevalent laws in our country are still not gender-neutral. Undoubtedly, equal protection must be provided to the victims, irrespective of their gender. 

To read more about the laws pertaining to male victims of rape and the approach of courts towards such offenses, click here. 

Offence of rape

In India, the offence of rape was criminalised for the first time by the Indian Penal Code, 1860 (hereinafter referred to as the IPC). Under the chairmanship of Lord Macaulay, the very first law commission of our country was formulated, which ultimately led to the enactment of the IPC. 

It took long years of struggle to criminalise such a crime of such a heinous and barbarous nature. The laws relating to rape have been significantly developed; however, back in the early days, getting justice and proving the accused guilty was on the victim. There was always an assumption that women were lying about the charges and the happening of such a crime. In the seventeenth century, a quote by a renowned jurist, Sir Mathew Hale, reflects the prejudiced and discriminatory thinking of the courts of British India on rape; it said that “an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, though never so innocent”. However, over time, there have been several developments in our criminal justice system, and the laws pertaining to rape have also evolved drastically. The anti-rape laws have become stringent, especially after some of the horrific and disturbing incidents that have occurred in the past few years. 

Rape is an act of extreme physical and mental torture, a deplorable crime that devastatingly affects the victim. It is not just an act of physical violence; but it also destroys the victim’s mental and psychological well being completely. Having a stringent criminal justice administration system that deals with such crimes sternly and punishes the offenders strictly is very important. 

The offence of rape is defined under Section 375 of the IPC. It states as under:

A man is said to have committed the offence of rape, under the following circumstances;

  • Clause (a) – If he inserts his penis, to any extent, in a woman’s vagina, mouth, anus, or urethra, or if he in any way forces or makes a woman to do any such thing with him or any other person; or
  • Clause (b) – If he inserts any object or a part of his body (not being the penis), to any extent, in the vagina, anus, or urethra, or forces a woman to do so with him or any other person; or
  • Clause (c) –  If any man manipulates in any manner any part of a woman’s body, to cause such penetration, in the vagina, anus, or urethra, or forces a woman to do so with him or any other person; or
  • Clause (d) – applies or forces his mouth to the vagina, anus, or urethra of a woman, or forces a woman to do so with him or any other person,

For the act to be regarded as an offence of rape under this Section, the aforesaid acts by a man should fall under any of the below-mentioned descriptions: 

  • Firstly – against the will of the woman 

In the case of Deelip Singh v. State of Bihar (2005), the victim stated that the first time the accused had sexual intercourse with her, it was done despite her resisting the same; however, subsequently, she became a consenting party. The reason behind her consent was stated by the girl that it was given because of the false promises of marriage by the accused. It was held that the version that the girl is stating or her testimonies cannot be relied on, and thus the charges against the man cannot be sustained. (It must be noted that this case was decided prior to the Criminal Amendment Act of 2013). 

  • Secondly – in the absence of the woman’s consent

In the case of Sohan Singh v. State of Rajasthan (1998), the Rajasthan High Court held that in a case of custodial rape, if the victim has stated that she did not give her consent to the act, then the court is supposed to consider the same and shall presume that consent was not given by the victim. 

  • Thirdly- obtaining the consent of the woman by putting or any other person related to her in danger or by threatening her or a person she is interested in fear of death. 

In the case of Harishankar v. State of Maharashtra, (1997) 11 SCC 191, the conviction of the accused appellant was upheld by the Supreme Court, wherein the court stated that in the circumstances in which the prosecutrix was stuck, it was not possible for her to raise the alarm of fear, and hence the defence by the accused that the prosecutrix did not shout is unsustainable. It was very evident from the statements taken that the prosecutrix was made to sit on the cycle bar and that she was given a tight slap on her mouth for making any movement or noise. Further, there were other circumstances in which it was difficult for the prosecutrix to raise any alarm. 

  • Fourthly – by impersonating the woman’s lawfully wedded husband, or if the man takes the consent of the woman by making her believe that he is her husband.

In the case of Deepak Gulati v. State of Haryana (2013), the Supreme Court emphasised the fact that it is important that the courts look carefully into whether the accused really wanted to marry the victim or whether there were any malafide intentions of the accused behind his promise to marry with the victim. 

  • Fifthly- by taking her consent when she is not capable of giving such consent, i.e., either she is intoxicated or of unsound mind, or she is not in a position to understand the nature and consequence of such an act. 

In the case of Azeez Usman Shaikh. v. State of Maharashtra (1999), the Bombay High Court, while giving due consideration to the aforesaid clause of Section 375, convicted a person of rape. In the present case, the victim was of an unsound mind. 

  • Sixthly- if the woman giving consent is under 18 years of age (the fact that the woman has given her consent or not is immaterial). 

In the case of Amirul Gazi v. State of West Bengal (2022), the Calcutta High Court convicted a man for the offence of rape, stating that consent given by a girl under the age of 16 is immaterial and will definitely not be considered valid consent for the act of sexual intercourse. 

  • Seventhly- in a situation where she is unable to give her consent. 

The Section further provides two explanations, so as to remove any ambiguity that might come in the way while interpreting the provision. 

Explanation 1 provides that the term ‘vagina’ will also include labia majora. 

Explanation 2 provides a clear understanding of the term consent in the context of this Section. It is said to be a clear and unequivocal voluntary agreement by the woman to enter into any sexual act, which may be presented or communicated through words, gestures or any other form of verbal or non-verbal communication. 

The above explanation further provides a proviso, that is, if, under a situation where no act of resistance is shown by the victim, it doesn’t mean that the act of forceful sexual intercourse will not amount to an offence of rape as provided in the Indian Penal Code.  

Furthermore, the Section provides for two exceptions, namely, medical examination and sexual intercourse by a man with his wife will not fall under the offence of rape, respectively. 

To read and understand a detailed explanation of the clauses in Section 375, refer to this article. 

In the case of Bhupinder Sharma v. State of Himachal Pradesh (2003), the Apex Court has held that “the offence of rape in its simplest term is “the ravishment of a woman, without her consent, by force, fear or fraud” or “the carnal knowledge of a woman by force against her will”. “Rape” or “raptus” is when a man hath carnal knowledge of a woman by force and against her will; or, as expressed more fully, “rape is the carnal knowledge of any woman, above the age of particular years, against her will; or of a woman child, under that age, with or against her will”. The essential words in an indictment for rape are rapuit and carnaliter cognovit; but carnaliter cognovit, nor any other circumlocution without the word rapuit, are not sufficient in a legal sense to express rape. In the crime of rape, “carnal knowledge” means the penetration to the slightest degree of the organ alleged to have been carnally known by the male organ of generation. It is a violation with violence of the private person of a woman—an outrage by all means. By the very nature of the offence it is an obnoxious act of the highest order.”

Punishment for rape in India 

Rape is the most heinous crime an individual can commit and the most egregious violation of the law that a person can perpetrate. It is a crime that entirely disrupts the being of the victim, as also stated by the courts in various cases. Rape is an unfortunate and sordid reality in not just India but the entire world. The act in itself reflects the horrifying reality of how women are being treated and are considered inferior to men. The trauma that a victim of sexual assault faces shatters her completely—a situation or a circumstance that is both unendurable and disgraceful. 

As opined in the case of Jennison v. Baker, (1972) 2 QB 52 and further quoted by the Committee on Reforms of the Criminal Justice System, Ministry of Home Affairs, “Law should not sit limply; while those who defy it go free and those who seek its protection lose hope”. Under certain circumstances and situations, punishment for those who defy the law becomes very important. The legislature has enacted various laws and provisions that protect the victim against such inhumane acts and also provide for punishments that will be imposed on an individual if he commits the offence of rape. Let’s have a detailed analysis of the provisions that provide for the punishment of rape in India. 

Section 376 IPC

The very first provision that deals with the punishment provided for the offence of rape is Section 376 of the IPC. Section 376(1) provides that any person who commits the offence of rape is liable to be punished with a period of imprisonment, which shall not be less than 10 years; however, the same may exceed a punishment of life imprisonment. Also, it must be noted that the type of imprisonment provided under this Section for the offence of rape is rigorous imprisonment. Further, it provides that this shall not apply to the cases provided under sub-section 2 of Section 376. 

In Section 376(2), punishment for a period which shall not be less than 10 years and which may extend to life imprisonment is imposed on any person who falls under the below-mentioned category and commits the offence of rape under the below-mentioned circumstances. 

  • If a police officer commits the offence of rape on the premises of the police station or on a woman who is in custody;  
  • If a public servant on his duty commits rape with a woman who is in the custody of such public servant or in the custody of any of his sub-ordinate;
  • If a person in the armed forces commits rape in the area where he is deployed; 
  • If a person who is in the management of a jail, remand home, any women’s institution commits the offence of rape on any woman (who is an inmate of any such aforesaid place) by taking advantage of his post;
  • If a person working in a hospital, commits rape in that hospital where he is working; 
  • If a person, who is a relative, guardian, or teacher of a woman, or is in a position of trust or authority towards her, perpetrates an act of rape on her.
  • If a person commits the offence of rape with a woman during communal or sectarian violence;
  • If a person commits rape on a pregnant woman (in spite of having knowledge about her pregnancy); 
  • If a person commits rape with a woman who is capable of providing her consent;
  • If a person commits rape on a woman with whom he has a position of control or dominance;
  • If a person commits rape with a woman who is mentally or physically unwell;
  • If a person severely injures or grievously hurts, maims, disfigures or endangers a woman’s life while committing the offence of rape;
  • If a person repeatedly rapes the same woman.

Also, it is pertinent to note that the convicted person is punished with rigorous imprisonment, and further, the term ‘life imprisonment’ will include a sentence for the rest of the convicted person’s life. 

Criminal litigation

The Section further provides an explanation for sub-section 2 of Section 376 for certain terms used in the aforesaid sub-section, wherein, it defines the terms ‘armed forces’, ‘hospital’, ‘police officer’, and ‘women’s or children’s institution’. 

Section 376(3) (added by the Criminal Law (Amendment) Act, 2018) provides punishment to the accused who has committed the heinous offence of rape with a woman who is under the age of 16 years. It states that the accused person shall be punished with rigorous imprisonment for a period not less than 20 years, which can extend up to imprisonment for life (the remaining period of the accused’s life). Further, the person shall also be liable to pay the fine amount as imposed on him, which shall be just and reasonable to meet the medical expenses and rehabilitation expenses of the victim. 

For a detailed understanding of Section 376, refer to this article on Section 376 Punishment. 

Section 376A IPC

The aforesaid Section (amendment done in the year 2013, effective from 03.02.2013- Act 13 of 2013) provides punishment for a person who has committed the offence of rape as laid down under Section 376(1) and (2), wherein the aforesaid acts of the person lead to the death of the victim or which leaves the victim in a persistent vegetative state. It provides that the accused person shall be punished with rigorous imprisonment for a period not less than 20 years, which can extend up to imprisonment for life (the remaining period of the accused’s life). 

Section 376AB IPC

The aforesaid Section provides punishment to the accused who has committed the heinous offence of rape with a woman who is under the age of 12 years. It states that the accused person shall be punished with rigorous imprisonment for a period not less than 20 years, which can extend up to imprisonment for life (the remaining period of the accused’s life). Further, the person shall also be liable to pay the fine amount as imposed on him, which shall be just and reasonable to meet the medical expenses and rehabilitation expenses of the victim. 

Section 376B IPC

Even though marital rape has not been criminalised in India yet, the aforesaid provision provides punishment to a husband who forces himself on his wife or who forces his wife to have sexual intercourse with him. However, one must note that this provision is for cases wherein the wife is living separately (be it under a decree of separation or otherwise, in the absence of the wife’s consent) and shall be punished with imprisonment not less than 2 years but can extend up to 7 years, along with a fine.

Section 376C IPC

This Section provides punishment for a person having sexual intercourse with a woman by abusing his position of authority. If a person with authority seduces a woman to have sexual intercourse with him, then this is a punishable offence under this Section. If a person of authority, a person having a fiduciary relationship, or a public servant, or a superintendent or manager in jail, remand home or any other such institution, or any person in hospital management or staff of the hospital abuses his position, thereby making a woman have sexual intercourse with him, then he shall be punished with rigorous imprisonment for a period not less than 5 years but which may extend to 10 years, along with a fine. 

Note: It is pertinent to note that this act of sexual intercourse by a man will not amount to rape and will not fall in the category of the definition provided by Section 375 of the IPC. 

Section 376 D IPC

The aforesaid Section provides punishment for the offence of gang rape. It provides that if the offence of rape is committed against a woman by one or more persons acting as a collective group or having a common intention, then under such a situation, every person involved in that act will be deemed to have committed the act of rape. Further, it provides that every such person shall be punished with rigorous imprisonment for a period not less than 20 years, which can extend up to imprisonment for life (the remaining period of the accused’s life). Further, the person shall also be liable to pay the fine amount as imposed on him, which shall be just and reasonable to meet the medical expenses and rehabilitation expenses of the victim. 

Section 376 DA and Section 376 DB IPC

Section 376 DA provides punishment to the persons accused of the offence of gang rape with a woman who is under the age of 16 years, whereas Section 376 DB provides punishment to the persons accused of the offence of gang rape with a woman who is under the age of 12 years. Both sections provide punishment for life imprisonment (rigorous in nature) along with a fine. Also, it is to be noted that such a fine shall be just and reasonable to meet the medical expenses and rehabilitation expenses of the victim. 

Section 376 E IPC

This Section provides punishment for repeat offenders who have been convicted of offences punishable under Sections 376 or 376A or 376AB or 376D or 376DA or Section 376 DB, and after that, the person is again convicted under any of the aforesaid sections. It provides punishment for imprisonment of life (for the remaining period of a person’s life).

POCSO Act, 2012 IPC

In the long and chequered history of the criminal justice system of India, the passing of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) embarks on a remarkable day. The POCSO Act addresses the issue of sexual violence against children and provides penal provisions for persons committing such offences. 

  • Firstly, the punishment for penetrative sexual assault (as defined under Section 3) is provided under Section 4. It punishes the offender with imprisonment for a minimum of ten years, which may extend up to imprisonment for life, along with a fine. If a person commits the aforesaid offence with a child less than 16 years of age, then he shall be punished with a minimum imprisonment of 20 years, which may extend up to imprisonment for life (for the remaining period of the offender’s life) along with a fine. Further, the imposed fine should be just and reasonable to meet the expenses. 
  • Sexual assault as defined under Section 7 is punishable under Section 8 with a period of imprisonment not less than 3 years, which may extend to 5 years, along with a fine. 
  • Aggravated sexual assault, as defined under Section 9, is punishable under Section 10. It provides punishment for a period of imprisonment not less than 5 years, which may extend to 7 years, along with a fine. 

For a detailed reading of the rape laws in India and the historical development of the laws, refer to this article – Rape Laws in India. 

Importance case laws

A recent survey conducted by the National Crime Records Bureau (NCRB) revealed horrifying and depressing data relating to sexual violence that in 2021, there were 1,49,404 registered instances of crimes against children. Of these, 53,874 cases, which constitute 36.05% of the total, fell under the jurisdiction of the POCSO Act.

Let’s have a look at a few cases dealing with the offences under the aforesaid Act.

State of West Bengal v Basudeb @ Basu Mondal & Ors (2021)

In the present case, four persons gang raped a minor girl aged 16 and blackmailed her with a video that they made with one of their mobile phones while they were sexually assaulting the minor. The accused were threatening the girl and were repeatedly warning her that if she dared to reveal the details of the crime, they would leak her video. However, the video was eventually leaked, and the girl gathered courage, and ultimately the FIR was lodged. The charges against the accused person were under Sections 6, 14 and 15 of the POCSO Act, read with Sections 376DA, 506, and 34 of the IPC and Section 67B of the Information Technology Act, 2000.

The defence contended that they had not committed any of the alleged crimes and that they were completely innocent. After hearing the parties, the two issues before the Additional Sessions Judge, First, Lalbagh, Murshidabad, were whether the accused persons had committed the offences as enumerated and, if yes, what would be the quantum of punishment as per the offences made out. 

While mentioning the principle of Jusitia Et Liberate Prior (Justice holds the highest position and comes before liberty), he observed that the victim fell prey to her lover’s lust and the other friends of her lover. They mercilessly and brutally raped her while simultaneously making a video of her. While stating that the mitigating circumstances are far less and the aggravating circumstances are many, the court convicted all the accused persons under the aforementioned offences of the POCSO Act and gang rape under the IPC and IT Act and sentenced them to imprisonment for life along with a fine of Rs 2 lakhs for each accused. The court further directed the state to grant a compensation of Rs 4 lakhs to the victim. 

Shantanu v. State (2023)

In the present case, the appellant was found guilty by the trial court of the offences punishable under Section 376 of the IPC and Section 6 of the POCSO Act. For the aforesaid offences, the accused was sent to jail for a term of 10 years and was also asked to pay a fine of Rs. 5000/- to the victim. Further, he was not sentenced under Section 376 of the IPC after taking into consideration Section 42 of the POCSO Act. 

The appellant challenged the aforesaid conviction before the High Court of Delhi. The appellant submitted that there were many discrepancies in the material evidence as submitted by the prosecution, and further, there were also improvements in the testimonies or statements given by the victim. The High Court, while giving due consideration to the victim’s minor age of six years, stated that chances may be that due to the victim’s innocence, there may have been a few changes in the statement; however, the improvements in the statement cannot be overlooked. 

The Court further observed that since in the present incident, there were no independent witnesses or any other medical evidence, it is crucial that the testimony given by the victim be of sterling quality because the only thing that will be examined here is the prosecutrix’s testimony alone. It further stated that “A perusal of Section 3(c) of the POCSO Act shows that for an act to be a penetrative sexual assault, the accused has to manipulate any part of the body of the child so as to cause penetration. There is nothing in the present case to show that there was any manipulation on any part of the body of the victim so as to cause penetration.” 

Thus, the Delhi High Court held that he cannot be convicted under Section 3(c) of the POCSO Act and that in the present case, no evidence can be shown that proves that there was any sort of manipulation on any part of the victim’s body to cause penetration. Further, it was also clarified that a simple touch will not amount to manipulation for penetrative sexual assault under the POCSO Act. 

Attorney General for India v. Satish and another (2023)

In the present case, a judgement delivered by the Bombay High Court in the case of Satish Ragde v. the State of Maharashtra (2021), was overruled by the Apex Court. The High Court acquitted the appellant under Section 8 of the POCSO Act and convicted him under Section 354 of IPC, thereby sentencing him to undergo rigorous imprisonment for one year. 

In this case, the Supreme Court, while relying on the principle of “mischief rule” of the Interpretation of Statutes, held that law must be interpreted in a way that curbs harm and promotes remedy. It further stated that Section 7 of the POCSO Act covers both direct and indirect touch. 

Marital rape 

In simple words, the term ‘marital rape’ connotes forceful sexual intercourse between husband and wife in the absence of consent from either of the parties. Under the exception 2 provided in Section 375, the act of marital rape is defined. The exception provided under the section clarifies that if the age of the wife is above 15 years, then this will not amount to rape. Now, the legal age for marriage in India for girls is 18 years, so under no circumstances, the age of a wife in marital rape will be less than 15 years. Hence, marital rape in India, as per the prevalent laws, is not criminalised. Thus, as per Section 375 of the IPC, there is no punishment for marital rape in India. 

As per a recent survey conducted by the National Family Health Survey (NFHS), around 1 out of 3 (18- 49 years of age) women have been victims of spousal abuse, and 6% of women have suffered sexual violence. Activists fighting for women’s rights and other support groups for women have been demanding the criminalisation of marital rape for the past few years. Unfortunately, marital rape still remains taboo in India, discussed rarely and ignored easily. In India, the concept of implied consent in marriage is widely followed, and hence marital rape is not a crime. 

Case laws

From the above discussion, it is clear that the offence of marital rape is not criminalised in India; however, there were a few cases in which the issue of marital rape was dealt with. Let’s have a look at them. 

Independent Thought v. Union of India (2013)

In the landmark decision by the Apex Court in the case of Independent Thought v. Union of India (2013), it recognised the bodily autonomy of a girl and criminalised the act of rape in child marriage or marriage of underage girls by their husbands. 

Anuja Kapur v. Union of India (2019) 

In this case, the present petitioner filed a Public Interest Litigation under Article 32 of the Constitution, wherein the petitioners prayed for the issuance of a writ of mandamus to the respondents for framing guidelines, by-rules, and appropriate rules for including marital rape as a ground of divorce and for punishment for violation of the framed laws. The Court, while dismissing the petition, stated that the formulation of laws is the function of the legislature and not of the courts. 

Challenge to Exception II of Section 375

In the case of Hrishikesh Sahoo v. State of Karnataka (2018) (judgement pronounced in March 2022), the Karnataka High Court held that the exception II of Section 375 (marital rape does not amount to rape) is not absolute and is contrary to the principle of equality. It stated that this exception is regressive and thus dismissed the arguments put forth by the husband, stating that the charges cannot be framed against the husband as the exception provides for it. The husband has moved against his conviction before the Apex Court and has presently obtained a stay against the conviction in his favour. Interestingly, the Karnataka government has also supported the prosecution of the husband in the present case. 

Presently, the case is pending adjudication before the Supreme Court. 

To learn more regarding the reasons that support the challenging of the exception clause of Section 375, please refer to this article. 

Suggestive provisions for marital rape in India: author’s opinion 

Formulating women-centric laws in nature will definitely have a great impact on society; for instance, women may use it as a tool for blackmailing their husbands, or proof of innocence under such circumstances will be very difficult. This may even lead to an increase in the divorce rate, which will disturb the sacred institution of marriage. Further, this will also be a clear violation of the fundamental right of equality enshrined in Article 14 of the Constitution of India, 1949. 

Hence, as per the author’s analysis, certain points mentioned below are important to keep in mind while making any law or separate provisions for the criminalisation of marital rape and punishment for the same. 

  • Gender-neutral– It is of crucial importance that the laws, if any, are enacted in the future to eradicate this evil of marital rape; they must be made gender-neutral.
  • Evidence pertaining to proving the allegations or for the accused to prove innocence–  It is important that the law provide certain criteria as to what will be the essentials to prove the offence of marital rape or how the accused will prove his innocence. 
  • Keeping in mind the personal laws– Up till now, our country has not enacted the Uniform Civil Code, we still have personal laws governing marriage, maintenance, succession, etc. Hence, it is important that whatever laws are framed, they be made after ensuring that they are not in violation of personal laws. 
  • Separate provision for divorce and maintenance– The formulated laws should have a separate provision for divorce and maintenance in order to maintain equality between the spouses. 
  • Punishment for women for false allegations– The formulated Act should necessarily have special provisions for punishing the women who are misusing the law and making false allegations. 
  • Maintenance– There should be a separate provision for maintenance for a wife if she is not able to earn for herself if she falls victim to the offence of marital rape. 
  • Provision for the custody of the child– There must be separate provisions as to how the custody of the child is decided if the spouses choose to live separately and the procedure for the transfer of custody to the child.
  • Special courts– There must be a special court for speedy trial and delivery of justice in such crucial matters. 
  • Specific period for inquiry– There must be special provisions that set up a specific time for completing the inquiry in a limited period of time. 

A spouse has a right to say ‘no’, marriage is not a licence to have forceful sexual intercourse. There is an urgent need for criminalisation of marital rape. It is evident from the existing and repealed laws that, since time immemorial, marital rape has been excluded from any legal prohibitions against rape. Sir Matthew Hale, in 1600 CE, opined that, in any marriage, any sexual act is consensual, as the act of marriage or the willingness of the wife itself reflects the consent of the women for sexual intercourse. He further said that the consent given after marriage is irrevocable. This ideology was not just opined by him; it was justified and widely accepted all over the world. However, with time, there have been reforms regarding the criminalising of marital rape. Presently, only 36 countries in the world have not criminalised the offence of marital rape, including India. 

Anticipatory bail in the cases of rape

In the case of the offence of rape, be it under the POCSO Act or the CrPC, there is no such absolute bar on the grant of anticipatory bail to the accused. Let’s understand the perspective of the courts of India through various cases wherein the accused has sought anticipatory bail in the cases of rape. 

Deepak Prakash Singh @ Deepak Singh v. State of U.P. and Another (2023)

In the present case, an FIR was registered against the accused under Sections 354, 376 IPC, Section 7/8 of the POCSO Act, and Section 3(2)(Va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, before the Jafrabad, Police Station, District Jaunpur. The accused moved a plea seeking a grant of anticipatory bail before the Sessions Court, Jaunpur, which was rejected. Further, he moved against the dismissal of his anticipatory bail plea before the Allahabad High Court. The accused, who was a teacher by profession, was accused of raping a minor girl aged about 14 years. The worst part was that the girl was mentally retarded. From the state, it was argued that the application for grant of anticipatory bail is not maintainable, as an offence under the SC/ST Act is also registered against the accused, and there is no provision for grant of anticipatory bail under the offences of the SC/ST Act. 

The Allahabad High Court observed that when a person is charged under the SC/ST Act and the POCSO Act, a Special Court under the POCSO Act would have the authority to decide on the bail plea. Therefore, the Court dismissed the state’s objection to the maintainability of the present anticipatory bail application.

The court, however, emphasised the position that a teacher holds in society, and further, while taking into account the facts and circumstances of the present case, it remarked that “In our society, a teacher plays a very important role in shaping the future of their students, and such conduct by the teacher would certainly create an atmosphere of fear in the minds of people in society, and such perpetrators should not go unpunished and should get just punishment from the Courts of law to curb such incidents in the future.”

After giving due consideration to the facts and circumstances of the case and the severity and nature of the allegations against the accused, the medical report, and the statements under Sections 161 and 164 CrPC, respectively, the High Court observed that no case is made out for the grant of anticipatory bail or for exercising its discretionary power under Section 438 CrPC.

XXXX v. State of Kerala (2023)

In the present case, the petitioner has been booked for the alleged commission of the offences under Sections 452, 354, 354A(1)(i), 354B, 376(2)(f), 376(2)(I), and 376(2)(n) of the IPC and Section 92(b) of the Rights of Persons with Disabilities Act, 2016.

It was alleged that the petitioner used to unlawfully enter the victim’s residence and repeatedly committed rape with her between March 2022 and October 2022.  The accused moved before the Sessions Courts for the grant of anticipatory bail; however, the same was dismissed. He then moved to the High Court of Kerala, seeking the grant of anticipatory bail.

It was contended by the petitioner that, at the time of the incident, he was only 18 years old. Further, it was also submitted by his counsel that the fact of the victim’s late registration of the FIR is doubtful. The first time the victim was raped was in March; however, the FIR was registered in October.  Also, it was submitted since the medical examination of the accused has been done, he is no longer required in custody. 

It was observed by the Ernakulam bench of the Kerala High Court, that merely because the accused was 18 years old at the time of the commission of an offence, he cannot be granted anticipatory bail. The Court opined that looking into the seriousness of the nature of the offence this fact alone cannot serve as a basis for granting anticipatory bail. While acknowledging the fact that the petitioner and the victim reside in neighbouring houses and that the victim, who is said to be disabled, has unequivocally identified the petitioner as the one who committed the crime, the court refused to exercise its power to grant bail to the accused. 

XXXX v. State of Kerala (2023)

In the present case, the accused was the stepfather of the victim, who was a minor. This application for seeking anticipatory bail was filed by the victim’s mother (the second accused). An FIR was registered against the stepfather and the mother under the offences punishable under Sections 376 (2)(n), 376(3) of the IPC, Section 4 read with 3(a), 6  read with Sections 5 (l) (m) and (p), 11 (i) (ii) & (iv) read with 12 and 16 read with 17 of the POCSO Act and Section 75 of the Juvenile Justice Act, 2015. The mother of the victim was accused of facilitating the offence of rape and sexual assault.

Justice P. Gopinath, of the Kerala High Court, while rejecting the plea of the accused mother, opined that, if the allegations made against the mother were confirmed, it would be a disgrace to motherhood. It was further observed that since the applicant’s mother is listed as  the victim’s biological mother, she could potentially influence or intimidate the minor child into providing evidence in favour of both her stepfather and her mother.

Lowering the age of consent 

As per the prevailing laws of the country, the age of consent is 18 years. Before the enactment of the POCSO Act, the age of consent was 16 years. It was the aforesaid Act that raised the age of consent from 16 to 18 years. The age of consent, i.e., the age at which one can legally give consent to sexual activities, is of significant importance, the reason being that it fundamentally shapes the understanding of the relationship involved. Thus, sexual intercourse with a child below the age of 18 years, even if consensual, is a penal offence (as discussed in the above paragraphs). 

The POCSO Act, 2012, was established with a view to protect minors from sexual abuse and exploitation, thereby, imposing strict penalties on any person found guilty of committing such offenses against children as given in the aforesaid Act. As per Section 2(d) of the POCSO Act, a ‘child’ is any individual aged below 18 years. Thus, consent given by a child for any sexual activity is deemed irrelevant, and consensual sexual activity involving or between adolescents is equated with rape.

However, in recent years, there has been debate going on about lowering the age of consent, as provided by the legislature. The main reason behind this is a high spike in the cases of sexual offences in the age group of 16 to 18 years. It has been argued by many experts that the reason behind this spike is mainly due to the fact that 18 years of age is very high and that this law fails to consider the complexities of adolescent relationships. Most of the cases are being filed by the families of the girl involved in a sexual relationship with a boy just to punish him. Even the courts of India have expressed the need to lower the age of consent and have thus asked the legislature to reconsider and amend the age of consent as per the present scenario of the society. Recently, Justice Bharati Dangre of the Bombay High Court said that it’s high time that the legislature takes note of the global scenario and reconsiders the age of consent under the POCSO Act. 

In most of the cases registered under the POCSO Act, it has been found that it is not the victim who registers a case against the accused, but the families of the girl involved in such romantic relationships. Often, the accused gets convicted even after the girl confesses the fact that she gave her consent, only because of the age barrier provided under the POCSO Act. 

To read more, refer to this article on “Age of Consent under the POCSO Act”.

Maheen Ali v. State of Kerala (2023)

In the present case, the applicant was booked under Sections 342, 354, 363, and 376(2)(n) of the Indian Penal Code and Sections 5(l), 6, 7, and 8 of the POCSO Act. The applicant (aged about 18 years) in the present case was in a relationship with the victim (aged about 17 years) for almost two years. The victim and the accused met on Instagram and were in a romantic relationship with each other. As per the prosecution story, it was stated that the accused kidnapped the girl and then had forceful sexual intercourse with her. However, the court, after giving due consideration to the victim’s statements and other evidence, found that the girl willingly went with the accused to his friend’s house. 

The Kerala High Court, after giving due consideration to the facts and circumstances of the case, granted anticipatory bail to the accused, aged about 18 years, due to the fact that the victim and the accused were in a consensual relationship with each other. 

Probhat Purkait @ Provat v. the State of West Bengal (2023)

In the present case, the Calcutta High Court quashed all the cases against the accused, who were booked under Sections 363 and 366 of the IPC and Section 6 of the POCSO Act. The lower court had convicted the accused under the aforesaid Sections, against which the applicant moved before the Calcutta High Court. All the evidence and the statements were considered by the court, and it was observed by the court that the girl and the accused were both in a consensual relationship. 

The Calcutta High Court further observed that “The victim stated before us that she and her husband belongs to a rural area and they do not have knowledge that their relationship and marriage constitute an offence. By equating consensual and non-exploitative sexual acts with rape and (aggravated) penetrative sexual assault, the law undermines the bodily integrity and dignity of adolescents. While the ostensible objective may be to protect all children below 18 years from sexual exploitation, the law’s unintended effect has been the deprivation of liberty of young people in consensual relationships. The POCSO Act lumps all persons below 18 years together without consideration for their developing sexuality, evolving capacity, and the impact of such criminalisation on their best interests.” 

Law Commission’s 283rd Report

The Law Commission of India, in its 283rd Report had declined the observations made by the various courts for lowering the age of consent from 18 years to 16 years. The commission was asked to give its report on the aforesaid subject of reducing the age of consent after the views given by various High Courts of India. It was asked by the courts that there is a need to reconsider the age of consent due to the increase in cases relating to minor girls aged about 16 years and above. However, the report stated that the POCSO Act definitely requires certain necessary amendments to combat the issue of an increase in the cases of false rape allegations or cases of consensual sexual relationships between the age groups of 16-18 years. 

One of the reasons given by the Law Commission for not lowering the age of consent was the probability that it might result in an increase in child marriages. In the report, it was stated that “Any decrease in the age of consent would negatively impact the age-old fight against child marriage by providing parents an opportunity to marry off minor girls. PCMA is silent on age of consent and sexual relations with a minor, with the POCSO Act filling this void. especially after Exception 2 to Section 375 of the IPC was read down by the Supreme Court in 2017. The Parliament is already considering increasing the age of marriage for girls to 21 years, at par with boys, and thus any decrease in the age of consent would be against the tide of rational change”.

The report further stated that in the discussion that took place in Parliament and the observations made by the Supreme Court that were opined after the introduction of the POCSO Bill in 2011, it was crystal clear that the law would have strict application and the consent of a child is immaterial and has no role to play, whatsoever may be the reason behind the consent. The report made it abundantly clear that the victim’s consent in a situation where she is a child is meaningless. 

It is to be noted that the Law Commission has clarified that it has presented its report after consulting with the National Commission for Protection of Child Rights (NCPCR), former judges, attorneys, child rights activists, NGOs, and academic experts in the field. The Commission also requested essential data from the High Courts (the pending and adjudicated cases relating to the offences under the POCSO Act) and the National Crime Records Bureau. In its report, the Commission has presented several arguments and a detailed analysis of the prevalent situations relating to this matter, and only after giving due consideration has it presented in its report that the age of consent under the POCSO Act cannot be tinkered with.

The report provided that the POCSO Act serves as a crucial tool in combating the evils of child trafficking and child prostitution. Altering or amending the definition of “child” under the aforesaid Act could potentially undermine its effectiveness.

Lastly, the report stated that the POCSO Act was never enacted to penalise romantic consensual relationships among minors. However, it was strongly pointed out that the fact that there exist romantic relationships between minors cannot be the sole reason to potentially expose children to exploitation by diminishing the protections provided under the Act. The stricter provisions of the Act were meant to protect thousands of children from child trafficking and other related inhumane crimes, and lowering the age will pave the way for criminals to openly abuse innocent children by taking the defence of consent from minors. 

Important cases 

Deepak Gulati v. State of Haryana (2013) 

In the present case,  the appellant filed an appeal against the order passed by the Additional Sessions Judge, which was affirmed by the Punjab and Haryana High Court, wherein the appellant was convicted under Sections 365 and 376. The victim in this case is a girl of 19 years old, and the appellant used to contact her with the intention of trying to have physical relations with her. One day, the accused asked her to marry him and then took him away from their native place, wherein, on the way to Kurukshetra, he raped her against her will. 

In this case, firstly, the meaning of the term sexual intercourse without consent was interpreted in a way to include the consent given under a misconception of fact. Put simply, the Apex Court held that if a person obtains consent from a woman under a misconception of facts and then has sexual intercourse with her, such an act will constitute rape. It opined that the facts should necessarily have immediate relevance. As far as the facts and circumstances of this case were concerned, it was held that consent obtained under the false promise of marrying the girl amounts to consent given under a misconception of facts. The Court further stressed the need to differentiate between the accused not keeping a dishonest promise and a simple breach of promise due to certain unforeseeable circumstances. 

It is pertinent to note that in the present case, the conviction and sentence of the accused were set aside. 

Nipun Saxena and ors. v. Union of India (2019) 

In the present case, the facts of the case were that the accused raped a woman and then killed her. He was then granted capital punishment by the High Court of Bombay. Thereafter, the news reached the media, and they published it without hiding the identity of the victim. 

Thus, the issues before the Supreme Court were as under;

  1. In what manner should the courts protect the identity of the victim?
  2. Under what circumstances can the identity of the victim be revealed?
  3. Whether such circumstances are applicable to the POCSO Act as well?
  4. What protective measures can be taken so as to reduce the hardships faced by the rape victims during reporting and investigation?

While giving answers to the aforesaid issues, the Apex Court formulated certain guidelines, as mentioned below. 

  1. The identity of the victim is not to be disclosed to the public at large by any means.
  2. In cases where the victim is not of sound mind, minor, or dead, under such circumstances, the identity of the victim is not to be disclosed even after taking any sort of authorisation from her guardian. 
  3. FIR lodged under any of these sections, namely, Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376 DB or 376E of 39 IPC and offences under the POCSO Act, shall not be disclosed in the public domain. 
  4. If an appeal is filed by the accused under Section 372 of the CrPC, then it is not necessary for the victim’s identity to be disclosed. 
  5. The documents pertaining to the victim’s identity and all the other relevant documents are to be kept under sealed cover by the police officials. 
  6. Every authority that receives the victim’s name from the investigative agency or the court is obligated to maintain the confidentiality of the victim’s name and identity. They should not reveal it in any way, except in a report that should be sent exclusively in a sealed envelope to the investigative agency or the court.
  7. In cases of offences under the POCSO Act, the disclosure of the victim’s identity can only be permitted by the special court, and only if such disclosure is in the interest of the child. 
  8. A request from the guardians or any other close relative to permit the disclosure of the identity of the deceased or mentally unstable victim’ under Section 228A(2)(c), IPC, should be exclusively submitted to the concerned Sessions Judge. This should be the case until the Government, under Section 228A(1), establishes certain criteria or guidelines as per the instructions provided in this case for identifying appropriate social welfare institutions or organisations.

Nafe Singh v. State of Haryana (1971) 

In the present case, the Apex Court held that resignation and no resistance by the victim in rape cases in the face of inevitable incidences will not be considered a mitigating circumstance. In the present case, the accused was convicted under Sections 366 and 376 of the IPC and was sent to jail for a period of 7 years (rigorous imprisonment). 

Bilkis Bano case 

The present case relates to a horrific incident that happened on the day of 2nd March 2002, when a girl of 21 years was gang raped in the Dahod district of Gujrat during the post-Godhra Gujarat riots.  After a long battle of approximately 6 years, all the accused were convicted under the offences mentioned in Sections 302 and 376(2)(e)(g), read with Section 149 of the Indian Penal Code, 1860. Further, they were sentenced to life imprisonment by the Sessions Court of Maharashtra. The same punishment was upheld by the Bombay High Court for the 11 convicts of the case. 

After the passing of around 15 years, one of the convicts approached the Gujarat High Court seeking remission of his sentence. However, the plea for the same was dismissed by the Gujarat High Court, stating the reason was a lack of jurisdiction. The court stated that the jurisdiction for the same lies with the Maharashtra government. The matter then travelled to the Supreme Court, wherein it was held that the power and the jurisdiction for the remission of sentence lie with the Gujarat Government, even if the matter was transferred to another state for adjudication, for whatever reason it may be. 

In accordance with the prevailing remission policy that was active during their sentencing, the convicts in the Bilkis Bano case were set free by the State Government of Gujarat in the year 2022. This decision sparked a wave of public indignation and demonstrations. It also resulted in a series of petitions being submitted before the Apex Court, challenging the early release of the convicts by the Gujarat government.

Presently, the decision for the same has been heard by the Apex Court and has been reserved for judgement. 

To read and get a comprehensive analysis of the case and the events related to it, refer to this article- Bilkis Bano case

Conclusion 

In conclusion, it is clear that sexual intercourse in the absence of consent, or consent obtained by fraud, deception, or fear, amounts to rape. Despite there being multiple penal laws punishing the accused for the offence of rape and other anti-rape laws, our criminal justice system still fails to address the issue properly and has utterly failed to provide safety and protection to the victims who fall prey to this barbarous offence. Some debated issues, like the criminalisation of marital rape, gender neutral laws, etc., are yet to be addressed properly by the legislature. Due to the evident ambiguity in the present laws, even the judgements of the courts seem apparently ambiguous and inconsistent. Presently, the substantive rape laws of our country are ill equipped to cater to the various issues that are being faced, like conviction of a spouse in the offence of rape, gender neutrality of rape laws, punishment for women filing false rape cases, etc. There is an urgent need for reforms in rape laws that clear this ambiguity and bring some certainty, along with stricter punishments to curb this evil. 

Frequently Asked Questions (FAQs)

Can a woman facilitating gang rape be prosecuted under Section 376 D of the Indian Penal Code?

Yes, in the case of Suneeta Pandey v. State of U.P. and Another (2023), the Allahabad High Court held that a woman who is facilitating the commission of the heinous offence of gang rape, in any way, may be prosecuted under the provision of gang rape provided in the Indian Penal Code, 1860 (Section 376 D).

Whether the allegations made against a person under the offences of the POCSO Act will be quashed if the accused marries the victims? 

In the case of Ranjeet Kumar v. State of HP (2023), the aforesaid issue came before the High Court of Himachal Pradesh, and the same has been referred to a larger bench of the same court. Thus, presently, this issue is pending adjudication. 

Whether anticipatory bail plea maintainable if the accused is charged under both the SC ST Act and the POCSO Act?

The Allahabad High Court, in the case of Deepak Prakash Singh @ Deepak Singh v. State of U.P. and Another (2023), held that if an accused is booked or charged under the POCSO Act as well as the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, (SC/ST Act) the provisions of the SC/ST Act will prevail over the POCSO Act, and hence, the anticipatory bail plea of the accused would be maintainable in the eyes of the law.  

What method can be considered while interpreting the age of a minor in cases falling under the POCSO Act?

In the case of Jarnail Singh v. State of Haryana (2013), the Apex Court held that in cases involving the offences of the POCSO Act, the procedure and law provided in the Juvenile Justice (Care and Protection of Children) Rules, 2007 is to be followed. 

References 

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