Provision of Rape In India (Provision of  375 of IPC)

Rape literally means a forcible seizure. In other words sexual intercourse with  a woman without her consent or against her will  by force, fear of death, or fraud. rape is  violation of a woman right and Rape in India is a cognizable offence as per Section 375 of Indian Penal Code-1860. (Provision of  375 of IPC)

Nicholas Groth in Men Who Rape defines rape as -‘some form of sexual intercourse against the will of the victim or by threat of bodily injury’.

Other literary sources define rape as “any form of forced sexual contact”.

Webster’s dictionary also defines rape as the crime of forcing another person to submit to sexual intercourse, however, the dictionary also describes rape as “the act of seizing or carrying off: abduction, violation”.(Provision of  375 of IPC)

In India Rape is defined as intentional and unlawful sexual intercourse with a woman without her will and her consent. The essential elements of this definition under Section 375 of IPC are‘sexual intercourse with a woman’ and the absence of consent. The Section 375 of IPC made it clear that intercourse would account to rape only during the absence of the woman’s consent.

In State of Punjab V/s Ramdev Singh [dropcap color=”#eeee12″](1) [/dropcap], Supreme Court held rape as an infringement of right to live. It is clear that rape is crime against humanity and violation of right to life

In Sakshi vs Union Of India [dropcap color=”#eeee12″](2) [/dropcap], Sakshi, an NGO focusing on violence against women, petitioned the Supreme Court of India to declare that “rape” under India’s criminal rape law (Indian Penal Code, or “IPC”, section 375) includes all forms of forcible penetration. (Provision of  375 of IPC)

“Rape” definition according to section 375 of IPC- (Section of  376 of IPC)

The offence of rape is one committed by a men who has sexual intercourse with a woman against her will, without her consent or even with her consent where that consent has been obtained by putting her in fear of death or hurt, or where by fraud when he is not her husband he obtains her consent making her believe that he is another man to whom she is or believe herself to be lawfully married,  when she in under 18 irrespective of her consent or non-consent. unable to consent (Section of  375 of IPC)

Section 375 – Rape A man is said to commit “rape” who,  has sexual intercourse  with a woman in circumstances falling under any of the seven following descriptions as given below:- (Section of  375 of IPC)

1. First –Against her will.(Section of  375 of IPC)
2. Second – Without her consent.(Section of  376 of IPC)
3. Third – 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.(Section of  375 of IPC)
4. Fourth – 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.(Section  375 of IPC)
5. Fifth – With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or opiate or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and effect of that to which she gives consent.(Section of  375 of IPC)
6. Sixth – With or without her consent, when she is under eighteen [18] years of age.(Section of  375 of IPC)
7. Seventh – When she is unable to consent.(Section of  375 of IPC)

 Sexual Intercourse Mean

Insert, his penis, to any extent, into vagina, mouth, urethra or anus of woman or Insert her to do so with him or any other person

or
insert to any extent, any object or a part of the body, penis, to any extent, into vagina, mouth, urethra or anus of woman. 

Explanation 1 – for the purpose of this section, “vagina” shall also include labia majora. (Section of  375 of IPC)

Explanation 2 – consent means an unequivocal voluntary agreement when the women by words, gestures or any form of verbal or non-verbal communication, communicate willingness to participate in the specific sexual act:(Section of  375 of IPC)

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded(Section of  375 of IPC)

Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

Exception 1.-A medical procedure or intervention shall not constitute rape.

Exception 2.-Sexual intercourse or sexual acts by a man with his own wife, is not rape.

Note- (i).  Wife’s age should not be less than 15 years.

(ii). If they are not living separately by the decree of judicial decision and husband does sexual intercourse without consent of wife (Section 375 A).

I.Against her will: (Section of  375 of IPC)

Sexual Intercourse in rape if it is done against will of woman. Against will means copulation despite of woman.

The word ‘will’ implies the faculty of reasoning power of mind that determines whether to do an act or not. There is a fine distinction between an act done ‘against the will’ Every act done ‘against the will’ is obviously ‘without the consent.’ But every act ‘without the consent’ is not ‘against the will.’ Clause (1) of this section applies where the woman is in possession of her senses and therefore, capable of consenting.(Section of  375 of IPC)

3.Illustration 1.- Mr. X was Sexual Intercourse with woman four times and the front part [dropcap color=”#eeee12″](3) [/dropcap]of breast became red but he did not resist. It is not held rape as per section 376 of Indian Penal Code-1860(Provision of  376 of IPC)

Illustration 2- A doctor does sexual intercourse with a girl child of 14 years taking her in[dropcap color=”#eeee12″](4) [/dropcap] the belief it is done under treatment. The girl child does not oppose. According to section 376 of Indian Penal Code-1860, the doctor will be convicted of rape

In the State of Uttar Pradesh v. Chottey La[dropcap color=”#eeee12″](5) [/dropcap]  the Supreme Court explained 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.

In Dilip vs the State Of Madhya Pradesh [dropcap color=”#eeee12″](6) [/dropcap] (16.04.2013) the Supreme Court was held that the crucial expression in Section 375 of Indian Penel Code  which defines rape as against her will. It seems to connote that the offending act was despite resistance and opposition of the woman. Indian Panel Code does not define consent in positive terms. But what cannot be regarded as consent is explained by Section 90 of IPC which reads as follows:

“consent given firstly under fear of injury and secondly under a misconception of fact is not consent at all.” (Provision of  375 of IPC)

In other Case Mohan Lal V/s State of Rajasthan [dropcap color=”#eeee12″](7) [/dropcap] court was said sexual intercourse was not done against her will, it is not rape.

2.Without consent: (Section of  375 of IPC)

Consent is very important in the cases of rape and sexual intercourse become rape without consent.Consent means an unequivocal voluntary basis agreement when the person by words, pointing or any form of non-verbal communication, communicates willingness to participate in the specific sexual act. (Section of  375 of IPC)

Consent is very important in the cases of rape, it was said that sexual intercourse becomes rape without consent.

But consent must be free. Consent is considered free in section 375 part 3 to 7 of Indian panel code these consents are-

1. Which is acquired by the fear of death or of hurt.
2. Which was given as understanding husband but he was not husband actually.
3. Which was given as not understanding nature and result of work due to unsoundness of mind.
4. Which was given by woman below 16 years.
5. Which was given by woman, she is unable to consent(Section of 375 of IPC)

In Mana Ramchandra Jadhav v. State of Maharashtra, [dropcap color=”#eeee12″](8) [/dropcap] the prosecutrix (Girl) left her mother’s house and joined the accused because her mother had turned down the proposal of her marriage with the accused on the ground that she was too young. When she was with the accused, she had sex with her against her will.. The act of sexual intercourse with the prosecutrix will be covered under this clause.

In Ravi Narain Das V/s State of Orissa[dropcap color=”#eeee12″](9) [/dropcap]  accused raped a blind helpless girl. No signs of hurt were found on her body but the accused was held guilty of rape because the blind girl was not in the condition to oppose

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FIR (First Information Report).

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1. [A.I.R 2004, S.C 1290]
2. [A.I.R 2004 SC 3566]
3. [Jagannath V/s State of Rajasthan Criminal Laws Re 1979, Rajasthan 228]
4. [William (1850) 4 Locts 220]
5. [(2011) 2 SCC 550]
6. [Criminal Appeal No. 1156 of 2010]
7. [A.I.R 2003 S.C-696]
8. [1984 Cri. L.J 852]
9. [1992, Criminal Laws 269 Orissa]

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