A complete analysis on section 375
The Indian penal code section 375 defines rape. The word is derived from the latin word ‘raptus’ which literally refers to an act by one man of damaging or seizing property of another man .Here property primarily referred to wife or daughter of another man. It is a sexual intercourse with a woman against her will and without her consent.
The rape laws under IPC were amended after the J.S. Verma committee report and brought some major changes in criminal law amendment act.
In the case of Sakshi v Union Of India, the Supreme court had to concede the inadequacies with concerning law relating to rape and suggested that legislature should bring about changes in the law. After passing the criminal law amendment act 2013 rape was formulated as most specific event it tried to enlarge the ambit of rape and the perception by making oral and anal acts amounting rape.
So now we will discuss here the new provision of Section 375 of IPC in detail-
According to sec 375, A man is said to commit rape if he –
- Penetrates his penis to any extent into the vagina, mouth, urethra or anus of a women or makes her to do so by any other person or
- Inserts to any extent any object or part of 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
- Manipulates any part of 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 with him or any other person or
- Applies his mouth to vagina ,anus ,urethra of a woman or makes her to do so with him or any other person ,under circumstances falling under any of these following 7 categories:
- Against her will
- Without her consent
- When the consent has been obtained by putting her or any person in whom she is interested in fear of death or hurt
- With her consent when the man knows that he is not her husband and that her consent is given because she belives that he is another man to whom she is or belives herself to be lawfull married.
- With her consent when at the time of giving such consent by reason of intoxication or unsoundness of mind ,she is unable to understand the nature and consequences of that which she gives consent
- With or without her consent when she is 18 years of age
- When she is unable to communicate consent.
There are two exceptions to this –
- A medical procedure or intervention shall not constitute rape.
- Sexual intercourse or sexual act by a man with his own wife ,the wife not being under 15 years is not rape.
Now lets understand all the 7 circumstances in detail-
Against her will –
Will implies the faculty or reasoning power of mind that determines whether to do an act or not. Against the will will show that act was done despite the resistance or opposition. There is fine distinction between against the will and without consent. Every act done ‘against the will’ is obviously ‘without the consent’ but every act ‘without the consent ‘ is not always ‘against the will’.
In the case of State of Uttar Pradesh v Chottey Lal, the Supreme court explained that the expression ‘against her will’ would ordinarily mean that intercourse was done by man with women despite her resistance.
Without her consent
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 a specific sexual act.
Here to absolve the criminal liability consent must be freely given and not obtained by fraud , misconception of facts ,influence of drink or drugs so she is incapable of giving any rational consent .
The policy behind exemption from liability in the case of consent is based on the principle that everyone is best judge of his or her intrest , if a person decides to suffer a harm voluntarily then that person can’t complaint of it when it comes about.
Consent has to be obtained prior to the act.
Important points to be considered with respect to consent-
- Consent either expressed or implied depending upon the circumstances .
- The burden of proof is always lies on the prosecution to prove that sexual intercourse was without the consent or against the will of the women.
- Consent given by women believing man’s promise to marry her would fall within the expression of without her consent. In the case of Pradeep kumar v state of Bihar ,it was held that ,if the accused deliberately make victim believe that he will marry her and obtains the consent ,but he never meant as such then the consent by victim will be of no value and would not exculpate him from the ambit of sec 375. It should be seen that at the very inception of making the promise the accused didn’t really mean or entertain the intention of marring her, the promise to marry was just to get consent for sexual intercourse then such consent wold vitiate the consent, and would make the accused liable under this section.
- Submission of a body under fear or terror is no consent.
Consent procured by putting the woman under fear of death or hurt is no consent in laws-
Clause (3) of sec 375 ,says that consent must not be obtained under fear of death or injury ,it should be given freely and voluntarily. After the amendment in 1983,the insertion of words “ or any person in whom she is interested” shows that fear of death or hurt would be towards the husband , parents , family etc. But its not mandatory that there should be actual use of force ,or injuries to show.
There is this two important cases related to this-
Mathura case– Tukaram v state of Maharastra In this case the girl was harijan orphan , was raped in the police station, in late hours of night by one of the constables. But the accused didn’t held guilty on the basis that there were no mark of injury on her which shows that whole affair was a peaceful one ,The judgement was criticized and later in (Balwant singh v state of Bihar) it was held that absence of injuries on back of prosecutrix doesn’t make prosecution case unbelievable.
Consent accorded Under misconception that the person is the husband of a woman is not a valid consent-
If she believes that the person to be her husband , whereas in fact he is not , is no consent in law. Such consent has been procured under misconception believing that person is her husband which in real is no the fact.
If the victim has given consent for cohabitation under a belief that accused was her husband then this concept has no value [ Bhupinder Singh v Union territory of Chandigrah]
Consent procured by woman of unsound mind or under the influence of intoxication etc-
This clause was added in criminal law amendment act 1983 , this was added to protect women who by the reason of intoxication, or unsoundness without understanding the consequence of the act gives consent . It was held that such consent was not freely and not made voluntary hence would not exclude the accused from liability.
Consent of girl under age of 18 is no consent at all-
A women under age of 18 is considered incapable of giving consent for sexual intercourse . Even if the girl is a willing party and invite the accused to have sexual intercourse with her , then also the accused will be liable for rape.
IMPORTANT POINTS THAT CAME OUT FROM VARIOUS PREVIOUS JUDGEMENTS THAT NEEDS TO BE CONSIDERED WHILE DEALING WITH SEC 375-
- Testimony of victim in cases of sexual assault is vital and unless there are compelling reasons which necessitate looking for corroboration of statement the court should find non difficulty in convicting the accused based on the statement of prosecutrix.
- Court should restraint making observation that probably the prosecutrix is a girl of loose moral character.
- Delay in lodging FIR is not material fact when properly explained.
- A mere act of helpless resignation in face of inevitable compulsion ,non resistance because of fear of ,cannot b deemed to be consent at all.
Author: Aditi Trivedi,
Faculty of law, Delhi University ,1st year law student