Analysis of section 375 of the Indian penal code, 1860

SYNOPSIS:

1. INTRODUCTION:

1. This article aims at analysis section 375 of the Indian Penal Code with aid of landmark judgments.
2. Section 375 of the Indian Penal Code deals with the offence of rape.
3. Rape has been defined as "when a man has sexual intercourse with a woman against her or without her consent or if she is a minor." 
4. There are two essential elements as stated under s.375: sexual intercourse by a man towards a woman and the sexual intercourse must fall within the purview of the seven clauses of s.375.

2. EXCEPTIONS:

1. It won’t amount to the offence of rape when the act of sexual intercourse is done by the husband with his wife.
2. Medical procedure won’t be considered as rape.
3. Marital rape is not yet recognized as an offence in India.

3. CONCLUSION:

1. The Amendment Act of 1983 has brought about some important and significant changes in the existing laws of rape.
2. Presence of such an elaborate law will be of no use until and unless it is effectively implemented.
3. Women need to be made aware of their rights and this can be only achieved through awareness.
4. Till the time women are made aware of their legal remedies, no law will hold value.

INTRODUCTION:

Security and safety of women against sexual offences has been insured by the Indian Penal Code, 1860 but the situation still remains grave. One of the most common offences against a woman is that of rape. Section 375 of the Indian Penal Code deals with the offence of rape. It defines rape as "sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped, or is of unsound mental health and in any case if she is under 18 years of age."  

Under the Indian Penal Code, 1860, rape has a very extensive definition. It is defined as follows:-

A man is said to commit “rape” if he-—

1. penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
2. inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
3. manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any ~ of body of such woman or makes her to do so with him or any other person; or
4. applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:—
   1. Against her will.
   2. Without her consent.
   3. With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
   4. With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
   5. With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome Substance, she is unable to understand the nature and consequences of that to which she gives consent.
   6. With or without her consent, when she is under eighteen years of age.
   7. When she is unable to communicate consent.

There are two essential elements as stated under s.375.

i. Sexual intercourse by a man with a woman:

It is very crucial to understand how the courts of India have defined sexual intercourse as IPC has not provided any definition for the same. In the case of Sakshi v. Union of India and Ors.[1], it was argued that the phrase “sexual intercourse” should include any type of any orifice of the body and not the intercourse understood in the traditional sense. Even though the court had upheld the old provision of s.375 (prior to amendment), the parliament decided to change the definition in view of the arguments raised by the petitioners. The parliament stated that the suggestions which had been made by the petitioners would go a long way to advance the cause of justice and is in a larger interest of society. As of today, section 375 stands amended and includes all forms of sexual assault and is not just limited to penile/vaginal intercourse or heterosexual intercourse.

ii. The sexual intercourse must fall within the purview of the seven clauses of s.375

A man is guilty of the offence of rape u/s 375 if he commits sexual intercourse with a woman either against her will or without her consent as enumerated under clauses first to seventh of Section 375 IPC.

1. Against her will: The word “will”impliesthe power of reasoning of the mind that determines whether to carry forwards an act or not. Although, there is a very fine line of distinction between “against her will” and “without her consent”. Every act which is “against her will” is without a doubt also “without her consent” but the same is not true vice versa. This is because clause (1) of this section is applied where a woman is in her senses and therefore is capable of consenting in usual course. The Apex Court in State of Uttar Pradesh v. Chottey Lal[2] elaborated that the expression “against her will” would ordinarily mean that the intercourse was done by a man with a woman despite her resistance and opposition.
2. Without her consent: The essence of the offence of rape is the absence of consent. According to explanation 2 under s.375 consent means “an unequivocal voluntary agreement when the person by words, gestures or any form of non-verbal communication, communicates a willingness to participate in the specific sexual act.” Hence, to absolve a person of any criminal liability, consent must be given freely and should not be obtained by fraud, mistake or misconception. This clause tends to operate in scenarios where women are drugged or unresponsive due to some other factor and hence cannot give consent. Obtaining consent prior to any act is a must and hence absence of the same attracts the offence u/s 375. In the case of Queen v. Flattery[3], the accused was charged with rape of a 19 year old girl who used to suffer from a disease causing fits, and the victim was visiting the accused in his clinic. The accused, after examining the girl, advised her to have a surgical operation, to which she consented, and under pretense of performing it, had sexual intercourse with the girl. It was held that the girl’s consent would not excuse the accused from conviction as it was given under a mistake of fact. There was a misconception as to the nature of the act and whatever consent was given by the girl was for the purposes of surgical operation and not for sexual intercourse.
3. Consent procured by putting the woman under fear of death or hurt is no consent in law: Consent should be given freely without any fear such as fear of death or hurt, as stated under clause (3). Prior to the amendment, the clause only considered fear of death or hurt if it was attributed towards the woman herself. But since the amendment, the fear of death or hurt could be towards her children, husband or parents also. In State of Maharashtra v. Prakash[4], SC held that where a woman was raped by a police constable and business man on the pretext that if she did not comply with them, they would put her husband in police remand, this act fell under the scope of clause (3).
4. Consent accorded under a misconception that the person is the husband of the woman is not a valid consent: Consent given by a woman while believing that the man is her husband, but in fact is not, is not consent in the eyes of law. In such a situation the person knows the fact of deceptionand pretends to be the husband of the womanso as to exploit her vulnerability. In Bhupinder Singh v. Union Territory of Chandigarh[5], the accused married the victim without telling her that he was already married and had children and consequently this made the marriage with victim void. The accused then went on to impregnate the victim and eventually the latter found out about former’s previous marriage. Then the accused left the victim and didn’t even come back after the birth of daughter. Here the court held that order of conviction passed by High Court stands as the acts of the accused amounted to rape under s.375(4)
5. Consent procured by a woman of unsound mind or under the influence of intoxication etc.: This clause aims at protecting women from who accords consent for sexual intercourse without knowing the nature and consequences of the act by reason of unsoundness of mind or under the influence of stupefying or unwholesome substance or intercourse with a defective. In TulshidasKanolkar v. State of Goa[6], accused had sexual intercourse with a woman who was incapable of comprehending the viciousness of the act and consequently she ended up getting pregnant. The district court held this constituted as rape under clause (5) of s.375 and sentenced him 10 years of rigorous imprisonment. In an appeal to HC this sentence was reduced to 7 years. Later in an appeal in SC, High Court’s move was much criticized.
6. Consent of a girl under 18 not valid in law: Sexual intercourse with a woman below the age of 18 will always amount to rape, irrespective of whether she consents or not as she is considered to be incapable of giving consent. In Harpal Singh v. State of Himachal Pradesh[7] the court held that even if the girl of 14 is a willing party and invited the accused to have sexual intercourse with her, the accused would be liable for rape under this clause. This clause had been added with the intention of protecting young girls from the predators.
7. When she is unable to communicate consent: It can be stated that this clause is rather vague. The clause generally means that it will amount to rape if sexual intercourse happens when the woman is unable to communicate her consent.

EXCEPTIONS:

The following actions wont amount to rape in the following two cases:

1. When the act of sexual intercourse is done by the husband with his wife. Marital rape is not yet recognized as an offence in India.
2. Medical procedure won’t be considered as rape.

CONCLUSION:

The Amendment Act of 1983 has brought about some important and significant changes in the existing laws of rape. The law pertaining to rape under section 375 is extensive and quite sufficient. But the presence of such an elaborate law will be of no use until and unless it is effectively implemented.One of the biggest lacunas in the implementation of the law is that the punishment given for the offence normally ranges from one to ten years, where on an average most convicts get away with three to four years of rigorous imprisonment with a very small fine; and in some cases, where the accused is resourceful or influential- may even expiate by paying huge amounts of money and get exculpated. The need of the hour is to make stricter sentence in order to bring about deterrence. Also, women need to be made aware of their rights and this can be only achieved through awareness. Till the time women are made aware of their legal remedies, no law will hold value.