Justice Krishna Iyer in the case of Rafiq v. State of U.P.made a remark that, 'a murderer kills the body, but a rapist kills the soul'
After the Nirbhaya Delhi Gang Rape case, 'The Criminal Law Amendment Act, 2013' came in to force w.e.f 3rd of Feb, 2013. Now this case was recorded as 'Rarest of Rare case' in the history of Indian Judiciary case laws. By this amendment act, our legislators introduced some new sections and make some amendments in Indian Penal Code, Criminal Procedure Code, Indian Evidence Act and Protection of children from sexual offences act.
The rape law of the country were amended in the year of 2013 after Justice J.S Verma committee Report. The Criminal Law (Amendment) Bill, 2013, more popularly called the Anti-Rape Bill, is now law. The Act came into force on 3rd February, 2013. The Criminal Law (Amendment) Act, 2013, anIndian legislationpassed by theLok Sabhaon 19 March 2013, and by the Rajya Sabha on 21 March 2013, provides for amendment ofIndian Penal Code,Indian Evidence Act, and Code of Criminal Procedure, 1973on laws related to sexual offences.The parliament in 1983 and 2013 extensively amended the law of rape so as to make the law more realistic. In Indian Penal Code sec-375 define rape. Criminal law (Amendment) Act 2013 substitute for new sections 375,376,376 A, 376 B,376 C and 376 D. After the Delhi Gang Rape Incident, there was hue and cry for including death penalty as a punishment in Sec 376 but inspite of this neither Justice Verma Committee recommended death penalty in offence of rape nor it was incorporated in the Ordinance Act,2013 and thereafter in Amendment Act,2013. The Parliament did not include ‘death penalty’ under Sec 376 because the legislature were of the opinion that it should be awarded only in cases of ‘rarest of rare’ laid down in case of Bachan Singh v. State Of Punjab .
The punishment for rape is seven years at the least, and may extend up to life imprisonment. Any man who is a police officer, medical officer, army personnel, jail officer, public officer or public servant commits rape may be imprisoned for at least ten years. A punishment of life imprisonment, extending to death has been prescribed for situations where the rape concludes with the death of the victim, or the victim entering into a vegetative state. Gang rape has been prescribed a punishment of at least 20 years under the newly amended sections.
Definition of rape (After amendment of sec-375 )
375. A man is said to commit "rape" if he -
a. 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
b. 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
c. manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
d. 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:-
First: Against her will.
Secondly: Without her consent.
Thirdly: 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.
Fourthly.—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.
Fifthly: 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.
Sixthly: With or without her consent, when she is under eighteen years of age.
Seventhly: When she is unable to communicate consent
ANALYSIS THE DEFINITION
The 2013 Act expands the definition of rape to include oral sex as well as the insertion of an object or any other body part into a woman’s vagina, urethra or anus.
A man is guilty of rape if he commits sexual intercourse with a woman either against her will or without her consent as enumerated under clauses firstly to seventhly under sec-375.
Essential Ingredients of Rape
The crux of the offence of rape under section 375, IPC is sexual intercourse by a man with a woman against her will and without her consent under any one of the seven circumstances mentioned below.
- Against her will.
- Without her consent.
- With consent obtained by putting her or any other person in whom she is interested in fear of death or of hurt,
- With consent but given under the misconception of fact that the man was her husband,
- Consent given by reason of unsoundness of mind, or under influence of intoxication or any stupefying or unwholesome substance,
- Women under eighteen with or without consent.
- When women is unable to communicate consent.
In order to bring home the charge of rape against a man, it is necessary to establish that the 'sexual intercourse' complained of was either against the will or without her consent. Where the consent is obtained under the circumstances enumerated under clauses firstly to seventhly, the same would also amount to rape.
Against her 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 the section applies where the women is in possession of her sense and therefore capable of consenting.
According to the first clause, sexual intercourse by a man with a woman against her will amounts to rape if it does not fall under the exception provided in the section. The expression ‘against her will’ means that the act is done in spite of opposition on the part of the woman. An element of force or compulsion is present. It imports that the victim has been overpowered by the man. It shows that the man has used coercion against her.
IN STATE OF UTTER PRADESH VS CHOTTEY LAL the Honourable 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.
Without her consent
Explanation -2 of sec-375 give the meaning of consent.
The new amendment defines ‘consent’, to mean an unequivocal agreement to engage in a particular sexual act; clarifying further, that the absence of resistance will not imply consent. Non-consent is a key ingredient for the commission of the offence of rape. To absolve a person of criminal liability, consent must be given freely and it must not be obtained by fraud or by mistake or under a misconception of fact. This clause operates where a woman is unresponsive whether because of the influence of drink or drugs or any other cause, or is so imbecile that she is incapable of giving any rational consent. Consent of the woman has to be obtained prior to the act.
Consent obtained by misrepresentation, fraud or under mistake is no consent. In Queen v. Flattery, the accused was charged for rape upon a 19-year-old girl. The girl who had ill health and was subject to fits, visited the accused's clinic along with her mother and sought his advice for treatment. The accused, after examining the girl, advised her to have a surgical operation, to which she consented, and under pretence 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.
The essence of rape is the absence of consent. Consent means an intelligent, positive concurrence of the ‘will’ of the woman.
3. Consent procured by putting the woman under fear of death or hurt is no consent in law:
Where a man has sexual intercourse with a woman 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, he is guilty under the third clause of committing rape . Clause (3) to section 375 IPC asserts that consent of the woman in order to exonerate the accused of the charge of rape must be given freely and voluntarily without any fear of death or injury. In such a case the consent obtained will not be a valid consent
A criticized judgment of the Supreme Court in this regard was Tukaram v. State of Maharashtra popularly known as Mathura rape case. Mathura, an 18-year-old Harijan orphan girl was called to the police station on an abduction report filed her brother at the police station- Desaui Ganj in Maharashtra on 26thMarch 1972. When they were about to leave the police station, Mathura was kept back at the police station in the late hours of the night by one of the constables, Ganpat, who was on duty. She was taken to a toilet and raped. After him, another constable Tukaram tried to rape her but being too heavily drunk, did not succeed. None of the two accused were held guilty for the following reasons
Subsequent decisions of the Supreme Court tried to atone for what it had decided in the Mathura case.
In Balwant Singh v. State of Punjab[xviii],the victim aged 19/20 years was forcibly taken in a car by the five accused persons and raped by each in a grove on the canal bank. She was found lying unconscious under a banana tree near the canal bridge by her father. She was medically examined and the report specified that she was raped by more than one person. It was held by the court that the absence of injuries on back of prosecutrix does not make the prosecution case unbelievable. The accused were five in number and the prosecutrix was a girl of 19/20 years. She was not expected to offer such resistance as would cause injuries to her.
4. Consent accorded under a misconception that the person is husband of the woman is not a valid consent:
Consent given by a woman to a person for intercourse believing the person to be her husband whereas in fact, he is not her husband, is no consent in law. In such a situation the person knows the fact of deception, and pretends to be the husband of the woman.
Knowledge on the part of the man that he is not the husband of the woman with whom he is having sexual intercourse and that she has given her consent because she believes him to be another man who is her husband is the essential requirement of this clause
5. Consent procured by a woman of unsound mind or under influence of intoxication etc.:
Clause (5) of section 375 IPC was added vide the Criminal Law (Amendment) Act of 1983. The object of the new clause was to protect and safeguard the interest of the woman 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 such cases it is presumed that the consent of the woman is not free and voluntary to exonerate the accused of the charge of rape.
6. Consent of a girl under 18 not valid in law:
Sexual intercourse with a woman with or without her consent when she is below 18 years of age amounts to rape. A woman under 18 is considered incapable of giving consent for sexual intercourse. The age of consent was raised from 16 to 18 by the Criminal Law (Amendment) Act of 2013.
The Apex Court in Harpal Singh[xxi], 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
Exception to section 375:
'Exception 2.- Sexual intercourse or sexual acts by a man with his own wife, the wife not being under sixteen years of age, is not sexual assault.'
Since child marriage in India is not yet void and is only voidable, such a check was necessary to restrain men from taking advantage of their marital rights prematurely. No man can be guilty of rape on his own wife when she is over 15 years of age on account of the matrimonial consent that she has given.
In Bishnudayal v. State of Bihar[xxiii], where the prosecutrix, a girl of 13 or 14, who was sent by her father to accompany the relatives of his elder daughter’s husband to look after her elder sister for some time, was forcibly ‘married’ to the appellant and had sexual intercourse with her, the accused was held liable for rape under section 376.
However, under section 376 B, IPC sexual intercourse with one’s own wife without her consent under a decree of judicial separation is punishable by 2 to 7 years imprisonment.
New definition of Rape is criticized
In the new definition, the legislators uses the words, 'Vagina, Mouth, Urethra or Anus'
But as per Oxford dictionary, Wikipedia and other national & international dictionaries, Urethra is a layer of skin inside the Vagina, means Urethra is covered by the outer layer of Vagina. There is no need to use the word 'Urethra' specifically. Vagina covers this part in itself as no penetration is possible physically without penetrating anything in to Vagina but to Urethra only.
- Under section 375 (c), the Legislator criminalize the art of manipulation under the definition of Rape. In this case, now it becomes very difficult to distinguish between 'Rape' and 'Attempt to Rape' as attempt to rape is already a complete offence in itself and it should be punishable only under section 511 of IPC r/w section 376 of same code and not under the category of Rape.
- the word, 'any part of the body of such women'. It is quite impossible to imagine that is there any other part left apart from Vagina, Urethra, Mouth or Anus where the penetration can be possibly made for the sexual purpose