A BRIEF INSIGHT INTO INCREASE IN RAPES AND LAWS PREVENTING IT IN INDIA

The issue of rape in India is of grave concern, with a significant increase in the number of reported cases in recent years. Despite legislative reforms and public outcry, rape continues to be a widespread problem in the country.The number of reported rapes in India has steadily increased over the last decade, according to the National Crime Records Bureau (NCRB). There were over 32,000 reported cases of rape across the country in 2019, the most recent year for which data is available, a 7.3% increase from the previous year.The patriarchal mindset prevalent in Indian society, which regards women as inferior and subordinate to men, is one of the main reasons for the rise in rapes. This mindset is reinforced.

It is one of the most morally and physically heinous crimes in society because it harms the victim’s body, mind and privacy. A rapist ruins and defiles the soul of a vulnerable woman, a murderer destroys the flesh of the victim. Rape uproots the entire life of those who suffer from it. A rape victim is never considered an accomplice. Rape is a crime against a society that violates the human rights of the victim. Rape,  the most despised crime, is a devastating blow to a woman’s greatest honour, violating both her reputation and dignity. It causes psychological and physical trauma to the victim and leaves an indelible mark on her. In any action, consent and will are the two key ingredients. Different dishes require different interpretations of ingredients. A brief reading of consent states that action should be voluntary and intentional. Many authors and researchers still believe that willingness and consent are the same. This article explains the clear distinction between will and consent under section 375 of the Indian Penal Code, based on various court decisions. Considering Section 375 of the Indian Penal Code, both articles must be met to avoid liability for rape.

Definition of rape under section 375 of Indian Penal Code  

Rape.—A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following 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 sixteen years of age. Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

(Exception) —Sexual intercourse by a man with his on wife, the wife not being under fifteen years of age, is not rape.]

COMMENTS Absence of injury on male organ of accused Where a prosecutrix is a minor girl suffering from pain due to ruptured hymen and bleeding vagina depicts same, minor contradictions in her statements they are not of much value, also absence of any injury on male organ of accused is no valid ground for innocence of accused, conviction under section 375 I.P.C. proper; Mohd. Zuber Noor Mohammed Changwadia v. State of Gujarat, 1999 Cr LJ 3419 (Guj). Penetration Mere absence of spermatozoa cannot cast a doubt on the correct­ness of the prosecution case; Prithi Chand v. State of Himachal Pradesh, (1989) Cr LJ 841: AIR 1989 SC 702.

Brief Explanation on Section 375 and its clauses:

Under Section 375, a man is said to commit rape if he;

1. Penetrates his penis into a woman’s vagina, mouth, urethra, or anus to any amount, or forces her to do so with him or anybody else; or
2. Inserts any object or portion of the body, other than the penis, into the vagina, urethra, anus, or any other part of her body, or forces her to do so with him or another person; or (commonly known as digital rape)
3. Manipulates any part of a woman’s body to produce penetration into the vagina, urethra, anus, or any other part of her body, or forces her to do so with him or anybody else; or
4. Applying his tongue to a woman’s vagina, anus, or urethra, or forcing her to do so with him or another person, or
5. Any of the seven clauses laid down under Section 375 of the Indian Penal Code, 1860. The provision embraced with seven clauses that majorly lays down circumstances that if takes place, can be quoted to be amounting to the offence of rape.  The same has been discussed hereunder.

First clause : against her will

If a male has sexual intercourse with a woman against her will, it is rape according to the first clause, unless it falls under one of the exceptions listed in the section. In Deelip Singh vs. State of Bihar (2005), according to the prosecutrix, the initial illegal conduct was carried out despite her opposition, but she later became a consenting participant as a result of frequent promises of marriage. She revealed in the FIR that she succumbed to him even before the first act because of the marriage promises. The Apex Court decided that her version was untrustworthy and that the charge against the accused was unfounded.

Second clause : without consent

If a male engages in sexual activity with a woman without her consent, it constitutes rape under the second clause if it does not fall within the exceptions set out in the Section. It should be noted that if the girl claims she did not consent to the rape while in custody, the court will assume she did not consent, as has been held in the case of Sohan Singh vs. State of Rajasthan (1998).

Third and fourth clauses : passive non-resistance or consent obtained by fraud

As per the third clause, when a woman’s assent is secured by putting her or anybody she cares about in fear of death or harm, although the act is done with her permission, the same amounts to rape. If a girl does not object to intercourse because she is misled, this does not constitute consent on her part. It was held that a man who was sent for professional guidance by a fourteen-year-old girl had a criminal relationship with her, and she made no resistance because she believed he was treating her medically, was guilty of rape. The prosecutrix submitting of her body out of dread or anxiety cannot be considered a consenting sexual act. In light of the case of State of Himachal Pradesh vs. Mange Ram (2000), the Supreme Court stated that the fact of consent may only be determined after a thorough examination of all relevant circumstances. Clause 4 concerns a rapist who is aware that he is not his victim’s spouse, and that her consent is granted because she believes he is another man to whom she is or believes she is lawfully married. In the case of Reg vs. R, 3 WLR 767 (HL), a wife left the matrimonial house and returned to live with her parents due to marital issues, advising the husband of her intention to file for divorce. While the wife was staying with her parents, the husband forced his way in and attempted to have sexual relations with her, during which he assaulted her. His attempted rape and assault causing actual bodily injury convictions were upheld.

Fifth clause : sexual intercourse with insane or drunken person

As per the fifth clause of Section 375, the acts done with the victim’s consent when she is unable to appreciate the nature and consequences of that to which she consents due to unsoundness of mind or intoxication, or the administration by the accused directly or through another of any stupefying or unwholesome substance, will amount to rape. In R v. William Camplin (1849), it was held that rape occurred when a man had carnal intercourse with a girl of imbecile mind and the jury found that it occurred without her consent, she being unable of giving consent due to a defect of comprehension. This act was committed when the perpetrator made a woman very inebriated and then violated her person while she was unconscious. These instances will now fall under the fifth clause of Section 375 of the Indian Penal Code, 1860.

Sixth and seventh clause : sexual intercourse with a minor and when the woman is unable to communicate consent

As per the sixth clause, if the offensive act is done with or without the consent of the girl and the girl is under the age of eighteen, it is termed rape.  The seventh clause states that if the offensive act is performed on a woman who was not in a position to consent at the time of the intercourse, the same will also be considered to be rape.

 In Mahmood Farooqui v. State of NCT of Delhi, the accused and victim were involved in an intimate relationship when the accused forced himself upon her. Fearing possible physical violence, the victim did not physically resist the accused’s advances and feigned an orgasm. Despite her vocal resistance, the court assumed her consent suggesting that in some circumstances, “a feeble no may mean a yes” especially “when parties are known to each other, … and if, in the past, there have been physical contacts”. Rather shockingly, the court imputed the victim’s consent from her prior flirtations, lack of physical resistance and ‘feeble no’.

The assumed standard of determining consent used by the Delhi High court was subjective to the accused. What the High court tried to unearth through discussing the victim’s ‘playful banter’, ‘flirtations’ and ‘acquaintance’ was the manifestation of intention on her part and how the same was qualified in the mind of the accused. Although the victim might not internally consent to sexual intercourse, if her actions lead the accused to consider that she was consenting, no offence is committed. But is such a standard required by law?

Explanation 2 appended to section 375 of the Indian Penal Code defines consent as “an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates a willingness to participate in the specific sexual act”.

It can be clearly imputed through the reading of the section that Indian law contemplates an expressive standard for sexual consent but doesn’t require the question of consent to be subjectively determined in the mind of the accused. Explanation 2 makes consent turn on the victim’s expression of consent and not the accused’s perception. Thus, it can be reasonably imputed that the standard contemplated by the legislation is more objective.

An objective standard of determining sexual consent requires that the victim’s consent be determined with reference to the objective implications of her actions or words. If such an interpretation is to be drawn from explanation 2 of section 375, the victim’s actions or expressions should be qualified as consent or rejection on the basis of the action or expression’s ‘equivocality’. An express declaration of a victim’s absence of consent by a verbal ‘no’ or alternate verbal equivalent should clearly demonstrate her lack of consent. As for the question of the victim’s implied consent, again, the victim’s actions should ‘unequivocally’ represent her consent. A victim’s past acquaintances or flirtations do not meet any standard of equivocality and thus cannot satisfy the standard of objectivity required to prove the existence of consent.

It is a practical necessity that a high standard of objectivity be read into section 375 of the Indian Penal Code, because it is often difficult for a victim to convey the absence of consent. A victim may well submit to an accused’s sexual advances fearing possible violence and thus, her mere submission cannot constitute consent. Judgements like Mahmood Farooqui undo the very purpose of 2013 Criminal Law (Amendment) Act, which was passed after the highly publicized Delhi gang rape incident. The legislation de-recognized the victim’s sexual history and presumed the absence of consent in cases of rape, thus establishing an objective standard for determining consent in favour of the victim. Such perverse judgments prove that a significant change in the interpretations of Indian rape laws is an urgent imperative.

Capacity to consent

The person is said to be capable of giving a valid consent when:

1. The person should be of a sound mind:  The burden of proof would be on the person claiming this right. 

For example, A gives consent to B to sell his property to him when he was in an unsound state of mind, and later retracts from the agreement, then it cannot be enforced because the consent was obtained when he was not in a sound mind. 

1. The person should have attained the age of majority: In law, it is believed that minors are incapable of giving consent. 

For example, if A and B are in a sexual relationship where B is a minor girl, though the sexual activity is consensual, it would still amount to the offence of rape.

Types of consent

Section 90 of the Indian Penal Code mentions the meaning of free consent. Consent is not said to be free when a person is put under the fear of injury, or misconception of facts.  There are two types of consent:

1. Implied Consent: It is a type of consent given by the person in the form of actions. Consent can be given through gestures or various non-verbal communications. According to the legal dictionary, implied consent refers to the consent that is inferred from signs, actions, or facts, or by the inaction or silence. For Example,. A owns a firecracker shop.  When B enters his shop he gives an implied consent that he wants to purchase products from his shop. 
2. Express Consent: It is a type of consent that may be given by a person in an oral or written form. If it is express consent, it becomes easier to prove in the court of law. For example, A asks B to Purchase a property for him and if he agrees and says yes, then it is expressed consent. 

Where consent need not be obtained

According to Section 92 of the Indian Penal Code where it is not possible for the person to give consent and the other person acts in good faith, there is no need to wait for the consent of the person. For example, If A is facing epileptics and bleeding, he is unable to give consent. Then if B, a surgeon, operated without A’s consent, During the operation A was declared dead, B cannot be held liable for his action because it was a case of emergency and the patient was unable to give consent. 

Will

The word refers to the reasoning power of the mind to determine whether to do an act or not. According to Merriam Webster, ‘will’ is defined as a thing that is done with desire or choice. In other words, an act of will refers to a desire to participate by a person without being under pressure or under the influence of any other person.  E.g. A instigated B to shoot C to which B willingly agreed and shot C. In this scenario, there was a clear will of B to shoot C though instigated by A he had a clear choice to say no. 

Act committed against the will

Will is a significant concept to prove the offence of rape. According to Section 375(1), where sexual intercourse is done against the will of the other person, amounts to the offence of rape. In the State of Uttar Pradesh vs. Chhotey Lal (2011) the Supreme Court explained the concept stating that an act done by a man against women despite her resistance or opposition.

Law against the will and without consent

Section 375 of the Indian Penal Code includes both the components it is an act that is committed against the will and an act committed against the consent of the women.  This section mentions the offence of rape. The word rape is derived from the Latin word “rapio” which means to seize in other words it refers to the ravishment of women without her consent. Recently in the year 2013, an amendment was passed in-laws of rape to safeguard the interest of innocent victims. 

Difference between ‘against her will’ and ‘without her consent’

Although the expressions against her will and without her consent may occasionally overlap, the two expressions in Clauses one and two of Section 375 have distinct connotations and dimensions. The phrase “against her will” usually refers to a male having sexual relations with a woman despite her protests and refusal. On the other hand, an act of reason accompanied by deliberation would be included in the statement ‘without her consent. It should be emphasised that the courts have applied the tests for establishing consent set forth in Section 90 of the IPC. As per Section 90, a consent is not such as is intended by any section of this Code if it is given out of fear of injury or a misunderstanding of facts, and the person doing the act knows, or has reason to believe, that the consent was given as a result of such fear or misunderstanding; or if it is given out of unsoundness of mind or intoxication, and the person doing the act knows, or has reason to believe, that the consent was given as a result of such fear or misunderstanding; or if the consent is given by a person who is under twelve years of age. In Holman vs. Queen (2010), it was stated that it must not be necessary for willingness to constitute consent. If a woman giving the consent is reluctant, hesitant, and grudging but she consciously permits the same, then such consent would be considered to be valid. A consent given under protest and tears would still be consent. For example, if a prostitute gives her consent for having sexual intercourse not because of her will but because of her constraint, her consent cannot be turned as invalid. Consent is therefore valid even if it is against the will.  In the State of Uttar Pradesh vs. Clottey Lala (2011), the Apex Court stated that the expression against her will and without her consent may overlap but they have different connotations and dimensions, the expression against her will would mean that that act is done by man despite her resistance and opposition. The other without her consent would mean an act done with deliberation. 

Tests for proving guilt in rape cases

In order to prove guilt in rape cases, a thorough investigation of the collection of evidence from the spot where the incident took place along with medical tests are to be performed for the conviction of the rapist. Following are the ways:

• Filing of an FIR

It is one of the most important steps in proving the guilt. An FIR is to be filed in the nearest police station to set the criminal justice machinery in motion.

• Place, date, time of the crime

The victim has to disclose the whole information regarding the place, date, time when the crime took place to the female officer.

• Mental state of the victim

Before recording the statement the female medical practitioner should check the mental state of the victim, whether she is in a fit state of mind to disclose the information, and is she suffering from any physical bodily injury, etc.

• Statement of the victim

The victim has to disclose all the facts as to how the rape took place, was there any connection of the victim with the rapist, and all such information which is relevant and important to convict the rapist.

• Consent of the victim

This is one of the most important and crucial aspects of any rape case as the whole case revolves around the consent of a woman. The woman has to disclose if she had given consent or whether it was under force or compulsion or death threat etc.

In the case of State of Maharashtra Vs Prakash,^[5] it was a case where a police constable and businessman had sexual intercourse with a woman by beating her husband and threatening to put him in police remand. Hence, the Apex Court held that the act falls under section 375(3) Indian Penal Code.

Further, the Court also held that the suggestion that the victim has consented to the sexual intercourse is also ruled out. The Court held that actual use of force is not necessary, threat to use of force is also sufficient.

Also, in the case of Tulsidas Kanolkar Vs State of Goa^[6], the victim was mentally ill and the accused committed rape on her. Hence, the Court held that the accused took advantage of her mental condition. It is specifically mentioned in Section 375 of the Indian Penal Code that consent obtained due to mental illness/ unsoundness of mind is no consent. It amounts to rape.

• Age of the victim

It is very important to ascertain the age of the victim as rape by the husband with his wife below the age of 15 years amounts to rape. The husband is not allowed to have sexual intercourse with his wife who is below fifteen years of age. Also, it is a rape with or without consent if the woman is below 18 years of age.

In Kathua Rape Case^[7], a small girl of 8 years old named Asifa Bano from Kathua was gang raped by some of the men. The Court in this case held that it was clear case of rape as it is immaterial if the consent was given by the girl or not as sexual intercourse with a woman below 18 years of age is rape.

• Testimony of an eyewitness

Another vital aspect of the investigation is testimony of the eyewitness if any. As the testimony helps in supporting the statements made by the victim and becomes easy to ascertain if rape has taken place.

Medical Examination

After filing an FIR, a medical examination of witnesses is conducted for evidentiary purposes. This examination helps in understanding whether the alleged accused has committed the rape or not/ he is guilty of rape or not.

• Clothes for examination

The clothes of the victim are generally taken and sent for forensic analysis to ascertain traces of DNA and to identify the accused. The marks of semen present on the clothes acts as an important aspect in deciding the guilt of the rapist. Furthermore, the clothes are also taken to examine if there are any blood or saliva marks on the clothes.

• Fingernail scraping

The fingernail scraping collection is another important aspect in deciding the guilt of the rapist as it may leave behind foreign DNA or fibres under the patient’s fingernails.

• Injuries on the body

The injuries on the body helps to understand the severity of the violence committed, the force used on the victim, etc. In the case of Mukesh & Anr Vs State for NCT of Delhi & Ors,^[8] the victim was severely injured. Rod was inserted in her private parts and on examination by the doctor it was found that only 5% intestines were left in her body. Thus, from the injuries it was evident that rape was committed on her.

• Examination of objects

It is very necessary to send the following objects such as clothes, shoes, footwear, carpet, pillow, fingerprints, footprints, hair, saliva, semen stains, etc to the laboratory to examine and for DNA testing, etc.

• Two finger test

It is a test to figure out the laxity of vaginal muscles and whether the hymen is stretchable for not. It is a test where the doctor puts two fingers in the vagina of the victim to find out if sex has taken place and if she is sexually active or not.

However, this test was declared unconstitutional and violative of her privacy, physical and mental integrity and dignity in the case of Lillu Vs State of Haryana.^[9] Hence, not practiced in India.

Therefore, these are some of the essentials for proving the guilt in rape cases in India.

Case law of essential of rape

1. Acts done against her will

Himachal Pradesh v. Mango Ram (2000) 

In this case, Prosecutrix was the eldest daughter Jagia Ram. The accused who was aged 17 years accompanied the prosecutrix. The accused caught her from behind and was forced to lie on the cowshed and committed a sexual act.  The Supreme Court held that the girl tried resistance to stop the accused from committing the act but the accused overpowered her and the act was committed against the will of the victim and was held liable for the offence of rape. 

2. Act committed against the consent

According to Section 375(2), an act of sexual intercourse committed against the will of the women amounts to the offence of rape. If the consent is not obtained freely then the other person can impose criminal liability. In the recent amendment in 2013 changes were made that if women claim that while having sexual intercourse there was no consent then the court shall presume the same.

Queen vs flattery (1877) 

In this case, the girl was in ill health and had gone to the accused’s clinic and she was advised to undergo a surgical operation to which she agreed while operating the accused had sexual intercourse with the girl. The court held that consent was not a valid one and was obtained through misconception. Thus accused liable for the offence of rape. 

3. Non-Valid Consent and associated case laws

Consent obtained under misrepresentation, fraud, or mistake: During the time of having sexual activity with a woman if consent is obtained misrepresentation, fraud, or mistake such consent won’t be held valid and the accused can be still held liable for the offence of rape.

Bhupender Singh v. Union Territory of Chandigarh (2008)

In this case, the accused had sexual intercourse with the prosecutrix through which she became pregnant and she had undergone an abortion. They again had sexual intercourse. The accused promised her that he would marry her again and she again became pregnant. Later, she got to know that the accused was already married and had children and in confrontation, the accused failed to perform his promise. She filed a suit against the accused.  The court held that the accused had sexual intercourse with the victim in a state of fraud and thus the consent of the victim is not a valid one and the accused was held liable under Section 375.

4. Consent obtained when the woman is intoxicated is of an unsound mind

A consent obtained during the state of unsoundness and intoxication cannot be termed as valid consent. 

Tulsidas Kanolkar vs State of Goa (2003)

In this case, the girl was not having a proper mental condition to give consent for sexual intercourse. The accused claimed the defence of valid consent.  The additional session judge holding the accused liable of the offence ordered rigorous imprisonment and a fine of 10,000. The High Court reduced the imprisonment to 7 years. The Supreme Court dismissing the appeal there was only mere submission and no consent. 

5. Consent obtained by putting a person of interest under fear of death is not a valid consent

If an interested person of a woman like children, parents, husband, etc is under fear of death and in that situation consent of a woman is obtained then it cannot be termed as valid consent.

State of Maharashtra vs Prakash (1992) 

In this case, the police officer and a businessman put the husband of the victim under remand where her consent was obtained to have sexual intercourse.  The court held that consent given by the women is not a valid one where a person of her interest is put under fear of hurt or death. Therefore they were liable for the offence.  A person not capable of communicating consent: If a man has sexual intercourse with a woman who is not able to communicate her consent would amount to the offence of rape.  E.g. If A is and B has sexual intercourse believing that she has conceived for the sexual act. Later A claims that she didn’t consent to that act then B would be liable for the offence of Rape. 

Exceptions to Section 375 

Section 375 of the Indian Penal Code, 1860 is furnished with two exception clauses, while the first one provides that a medical procedure or intervention shall not constitute rape, the second exception provides that sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.

Exception 1 : medical procedure or intervention shall not constitute rape

A medical procedure or intervention shall not constitute the offence of rape. This exception clause states that any medical intervention against women cannot be termed as an offence of rape under the court of law.

Exception 2 : sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape

By the 1949 Amendment to the Indian Penal Code, 1860, the age limit was increased from 15 to that of 18 years. There may be times when a legal check is required to prevent males from taking advantage of their marital rights prematurely. In such instances, the husband’s abuse will be covered by this clause. The Supreme Court ruled in Independent Thought vs. Union of India (2017), that sexual intercourse with a girl under the age of 18 is rape, regardless of whether she is married or not. Exception 2 makes an unnecessary and artificial distinction between married and unmarried girl child, according to the Court, and has no rational nexus with any specific goal attempted to be reached. This artificial distinction is in violation of Article 15(3) of the Constitution’s spirit and ethos, as well as Article 21 of the Constitution. It also goes against the idea behind some statutes, such as the girl child’s bodily integrity and reproductive choice.

Landmark judgments under Section 375 

Section 375 is one of the most talked-about sections nowadays due to the significant increase in the number of rape cases in India. Some of the landmark cases are as follows:

Rao Harnam vs Union of India (1957)

In this case, Kalu ram sent her wife aged 19 years to please the accused. The girl protested against this act of the husband but was later induced to surrender. The accused ravished her due to which she died immediately. The High Court observed that she surrendered her body to the accused under the pressure of her husband therefore the accused would be liable for the offence.  This judgment is a landmark because it explains the difference between consent and mere submission  the high court while pronouncing the judgment held that 

• A mere act of helpless, inevitable compulsion cannot be deemed as consent. 
• If the submission involves fear then the consent is not free. The Mere act of submission doesn’t involve consent.
• consent is said to have been given by the woman if she freely agrees to submit herself. It involves conscious and voluntary acceptance of what is proposed to be done.  

Mukesh & Anr. vs. State for NCT of Delhi & Ors. (Nirbhaya Gang Rape Case) (2017)

In this case, a young girl was returning home with her male friend after watching the movie and boarded a bus. Six people were there at the bus including the driver firstly knocked on the guy with the iron rod then she was brutally raped by all of them. Within 24 hours, they were arrested. The Supreme Court while pronouncing the judgment considered it as the rarest of the rare case and ordered the death penalty to the offenders.  This was a landmark judgment where the court observed it as the rarest of the rare case and ordered them with the punishment of the death penalty.  This case also generated a lot of public outcries which led to the formation of the JS Verma committee and various suggestions were suggested and finally an amendment was passed in the year 2013. 

State of Maharashtra v. Vijay Mohan Jadhav and Ors. (Shakti Mills Gang Rape) (2019)

In this case, a 22-year-old photojournalist was interning under English magazine in Mumbai she had gone to the Shakti mills compound near Mahalakshmi in south Mumbai the accused had tied her up with belts and brutally raped her. They didn’t stop there. They took the photos of the victim and threatened to release them. The session’s court awarded the accused a life sentence. It was further challenged by the victim and demanded the death penalty. The appellant court held that the accused would be liable for the death penalty if any leniency is shown towards the accused it would create a mockery of justice.  The case is considered a landmark one because the court highlighted the rarest of the rare case and awarded the accused the punishment of the death penalty. 

Tukaram and Anr. v. State of Maharashtra (1978)

In this case, Mathura was an 18-year-old orphan girl who was called to the police station on an abduction report filed by her brother. Mathura was kept late. She was forcefully taken to the toilet and was raped by a constable Ganpat and Molested by Tukaram they had bottled the door from inside. In the sessions court the accused were acquainted naming it as consensual sex. The decision was challenged in the Bombay High court which reversed the decision distinguishing between consent and passive submission and claimed that there was no consent and was a mere passive submission therefore they are liable. In the Supreme Court, they were acquainted with their charges and claimed that there were no marks and it was a peaceful affair. This judgment of the Supreme Court was heavily criticized thus after this judgment in an inquiry it was held that marks in the victim’s body are not important.  Recently the case that shook the whole country is the Nirbhaya rape case four decades ago the case that shook was the Mathra rape case. This case highlighted the flows existing in the existing criminal laws. A criminal law amendment was passed to nullify the effect of the judgment. Legal Changes 

• Changes were made in Section 376 of the Indian Penal Code. 
• Custodial Rape provision under Section 376(2) was added. 
• The Punishment was prescribed to a term not less than 10 years 
• Section 228A Indian Penal Code was added not to reveal the identity of the rape victims. 

Vishaka v. State of Rajasthan and Ors. (1997)

In this case, a social worker named Bhanwari who was contributing her effort in stopping child marriages was allegedly gang-raped by five men though a complaint was logged no investigation was initiated.  The trial court acquainted the accused due to a lack of medical evidence. A public Interest Litigation was filed on the issue of sexual harassment at the workplace. The court decided to give the judgment on international conventions right to work with human dignity is granted under Article 14, 19, 21 of the Indian constitution. In this case, certain guidelines were given by the Supreme Court; it is popularly known as Vishaka guidelines.  This case is a landmark judgment because this case leads to the formation of guidelines on sexual harassment at the workplace. Before this case, India didn’t have guidelines for the offence of sexual harassment at the workplace. These guidelines became legislation in 2013 in the name of sexual harassment at the workplace Act, 2013.  Legal changes: 

• Formation of sexual harassment Committee. 
• The committee should be headed by a women employee of the NGO. 
• The committee Should Guide the victim for further course of action.  

State of Maharashtra v. Madhukar Narayan (1990)

In this case, the accused went to the hutment of the prosecutrix and had forcible sexual intercourse the victim tried to resist him. In his defense he claimed that he had gone to the hutment because the lady engaged in the business of illicit liquor. She also had an extramarital affair. The Bombay High Court refused to impose a charge on the inspector. The Supreme Court held that the history of the women should not be taken into consideration and removed the inspector from his service. This case was a landmark because the court gave an important guideline that the history of the women should not be taken into consideration. By the virtue of Article 141 of the Indian Constitution, it is still binding on the lower courts. 

Independent thoughts v. Union of India (2017)

A writ petition was filed in the Supreme Court under Article 32 challenging the exception 2 mentioned under Section.375 which claimed non-consensual sex with wife above the age of 15 doesn’t amount to the offence of rape. The court observed that there is an artificial distinction made between married and unmarried girls without any reasonable nexus. Forcible sexual intercourse with wife leads to mental trauma. Therefore the court finally increased the age from 15 to 18.  This was a landmark Judgments it was one of the most significant steps taken to criminalize marital rape which is an exception under Section 375 and set a limit that non-consensual sexual intercourse with wife below 18 years would amount to the offence of rape.

Section 376 of the Indian Penal Code, 1860

The 1983 Amendments to the rape laws in India were prompted by the acquittal of police officers in the infamous Mathura Rape Case and widespread protests against the judgement. Sections 375 and 376 of the Indian Penal Code, 1860 were considerably altered by the Criminal Law (Amendment) Act, 1983. The same Act also included numerous new sections to the Penal Code, such as;

• Section 376A: Punishes sexual intercourse with wife without her consent by a judicially separated husband.
• Section 376B: Punishes sexual intercourse by a public servant with woman in his custody.
• Section 376C: Punishes sexual intercourse by Superintendent of Jail, Remand Home, etc., with inmates in such institutions
• Section 376D: Punishes sexual intercourse by any member of the management or staff of a hospital with any woman in that hospital.
• Section 376E: A repeat rape offender will have to be imprisoned for the rest of his life or sentenced to death.

These new sections were created in order to prevent sexual abuse of women in custody, care, and control by a variety of people who, while not committing rape, were nonetheless regarded morally immoral. For the crime of rape, the modified Section 376 of the 1860 Code stipulated a minimum sentence of seven years in jail. A minimum penalty of ten years in prison has been imposed to combat the vices of custodial rape, rape on pregnant women, rape on girls under the age of twelve, and gang rape. However, courts in either case could impose a term less than seven or ten years for extraordinary reasons to be stated in the judgement. Section 114A of the Indian Evidence Act, 1872 by raising a presumption as to absence of consent in cases of custodial rape, rape on pregnant women and gang rape as in clauses (a), (b), (c), (d), (e) and (g) of sub-section (2) of Section 376, merely on the evidence of the ravished women had, at least partially, removed the infirmity from the evidence of a victim of rape that was hitherto unjustly attached to her testimony without taking note of the fact that in India, a disclosure of this nature was likely to ruin the prospect of the girl’s rehabilitation in society for all times to come and unless her story was painfully true she would not have taken such a grave risk merely to malign the accused. 

Is Section 376 of the Indian Penal Code, 1860 a gender-neutral provision

Section 376 is not gender-neutral, and thus does not cover sexual abuse of minor males. The penalty under the Protection of Children from Sexual Offenses (POCSO) Act of 2012 remains 10 years to life imprisonment for offences against boys under the age of 12 and seven years to life imprisonment for offences against boys between the ages of 12 and 18. The law modified the Code of Criminal Procedure, 1973 (CrPC) to reduce the time required to complete an investigation from three to two months. Anticipatory bail is likewise prohibited in situations of rape of minor girls under the age of 16. Any appeal against a rape sentence must be resolved within six months.

Changes made in Section 376 post Delhi gang rape case, 2012

Following a vicious gang rape of a woman in Delhi’s capital city in 2012, the Verma Committee was formed, whose recommendations led to significant reforms in rape law. Some recommendations, such as not raising the consent age to 18 from 16, as it was previously, introducing matrimonial rape, and not requiring sanction for prosecution of armed personnel, were not accepted. But the law changed in regards to:

1. Consent when Section 114A of the Indian Evidence Act, 1872 was enacted,
2. Prohibiting questions in cross-examination of the victim about previous sexual experience or immoral character,
3. Making the issue of previous sexual experience irrelevant, and 
4. Certain other procedural aspects in the Code of Criminal Procedure, 1973 inter alia, relating to an investigation by woman police officers, video recording of statements before magistrates, the time limit for completing of inquiry, the requirement of trial proceedings in camera, etc.

Kathua Rape Case and the Criminal Law (Amendment) Act, 2018

1. Following public outrage over the alleged gang rape and murder of an eight-year-old girl in Rasana village near Kathua in the state of Jammu and Kashmir, the Criminal Law (Amendment) Act, 2018 amended Chapter XVI of the Indian Penal Code, 1860 to provide for harsher penalties for rape perpetrators, particularly those targeting girls aged 12 to 16. 
2. Rape against a woman under the age of 12 is now punishable by rigorous imprisonment for a duration of not less than 20 years, but which may extend to life imprisonment, as well as a fine or death. 
3. Gang rape of a woman under the age of 12 is now punishable by life in jail, a fine, or death. 
4. Rape of females under the age of 16 is punishable by up to 20 years in prison or life in prison. Life imprisonment means that the person will be imprisoned for the rest of his or her natural life. The minimum sentence for rape of a female over the age of 16 is ten years in prison.

Exploring rape cases through landmark decisions 

Suicide by victim

In the case of State of Karnataka vs. Mahabaleshwar Gourya Naik (1992), it was decided that the non-availability of the victim in a rape case was to be determined to be no reason for acquittal where the victim committed suicide before the trial and was not available for examination. The other evidence available had confirmed the accused’s guilt in this case. The accused was found guilty under Sections 375 and 511 of the Indian Penal Code, 1860 since the evidence proved at least an attempt to rape, if not rape.

Absence of injury

It is true that harm is not a requirement for determining whether or not rape has occurred. However, each case’s factual matrix must be considered. It was noted in Pratap Misra vs. State of Orissa (1977), where there was a claim of rape by numerous people at different times, but no evidence of harm. If the prosecutrix’s statement is plausible, the presence of injuries is unquestionably relevant, and no confirmation would be required. However, if the prosecutrix’s version is not credible, verification is required.

Corroboration of testimony

In the case of Rameshwar vs. The State of Rajasthan (1952), the Supreme Court had decided that a woman who has been raped is not an accomplice. If she was raped, it was an atrocity, but if she consented, there was no rape. In the instance of a girl under the age of consent, her consent will not be considered in the case of rape, but if she consented, her testimony will be considered suspect as that of an accomplice. The real rule of prudence requires that the judge consider the possibility of corroboration in every situation of this nature, and that this be noted in the verdict. The judge, on the other hand, can forgo corroboration if he believes it is safe to do so in the particular circumstances of the case at hand.

Conviction on sole testimony of prosecutrix

In the case of Ramdas vs. State of Maharashtra (2007), the Supreme Court of India had observed that a conviction based only on the prosecutrix’s evidence is valid if the Court is convinced of the prosecutrix’s truthfulness and there are no circumstances that cast doubt on her veracity. Insisting on corroboration, save in the most exceptional of circumstances, equates a victim of another’s lust with an accomplice to a crime, and therefore insults womanhood.

Rape by police constable

In the case of Visveswaran vs. State of Tamil Nadu (2003), the Supreme Court had opined that the identity of the accused was confirmed by the fact that he was arrested from the hotel. A police constable reportedly raped the woman in a hotel room in this case. She couldn’t identify him and there was no test identification parade. During the trial, the accused was unable to provide an explanation for his whereabouts at the time of the crime. The Apex Court, while observing that in such cases courts must take a different approach, held that  minor inconsistencies or disparities, as well as a flawed inquiry, should not sway the Court.

Rape and conspiracy for rape

In the case of Moijullah vs. State of Rajasthan (2004), the Supreme Court of India was considering a case that involved four accused persons who tried to seduce young schoolgirls with their wealth and pretensions of friendship, then sexually exploited and raped them. Two of them committed rape, the third made overtures to one of the victims, and the fourth, who was also a driver, drove them to the farmhouse, where they were exploited. Witnesses corroborate their actions. Section 376 led to the conviction of two of them. The third and fourth defendants were found guilty under Section 376 read with Section 120-B (conspiracy), notwithstanding the fact that all co-conspirators did not act in the same manner. Their life sentence was commuted to ten years of supervised release.

Charge not proved

In the 2003 case of Sudhansif Sekhar Sahoo vs. State of Orissa, which appeared before the Apex Court, the prosecutrix was a well-educated and employed woman. She travelled a considerable distance in the accused’s jeep at night in order to meet her superior officer. She claimed that when they stopped at the accused’s place, he raped her. This being quite a rare behaviour, there was no convincing justification given for meeting the officer late at night. Her garments were free of sperm or bloodstains. She claimed virginity, but medical evidence revealed that she was a sex addict. The accused was granted the benefit of the doubt.

Unchaste woman

According to the Supreme Court, a woman’s unchastity does not make her “open to any and every person to violate her person as and when he desires.” Her evidence cannot be tossed overboard simply because she is a woman of easy virtue. At most, the officer tasked with evaluating her evidence would be compelled to exercise caution before accepting her testimony. The Apex Court made this decision in the case of State of Maharashtra vs. Madhukar N Mardikar (1991). In another case of the State of Uttar Pradesh vs. Om (1999), the Supreme Court ruled that the prosecutrix’s lack of moral character, her use of sexual intercourse, and the possibility that she went to the accused herself were not grounds for disbelieving her statement.

Rape and grievous hurt

A recent case of Rajesh vs. State of Madhya Pradesh (2017) that appeared before the Apex Court involved an accused who had the victim girl (seven years old), in his care and custody, and he perpetrated natural and unnatural sexual actions on her over a period of time. The injuries sustained by the accused on the day of the incident were to the head, hand, or thumb, and so could not have been the cause of death for the girl. In such a case, the accused’s responsibility for the conduct of the act under Section 302 of the Indian Penal Code, 1860 would be seriously questioned. The Court held that the accused should be found responsible under Section 325 of the Indian Penal Code, 1860. As a result, the conviction was changed under Section 302 to one under Section 325, while preserving the conviction and penalties issued under Sections 376 (2) (f) and 377 of the Code. As a result, the death penalty was reduced, and accused was sentenced to seven years in prison.

Offences comparable to rape and indecent assault

In the case of R v. Eskdale (Stuart Anthony) (2002), the accused had challenged a sentence of nine years in jail given after pleading guilty to harassing the public by making threatening, obscene, and harmful phone calls. Over the course of two weeks, he made around 1000 phone calls to 15 complainants. The calls were made for his sexual enjoyment, and he had threatened his victims with rape or significant physical pain if they did not perform sexual activities against themselves. He had already been convicted of sending abusive and indecent material through the telephone system. It was decided that the sentencing court was correct in concluding that the accused’s crimes were akin to rape and indecent assault. His prior convictions, as well as a pre-sentence report and a psychiatric report, showed that he posed a continuing and rising threat to women. As a result, the penalty handed down was not excessive.

Loopholes to Section 375 of the Indian Penal Code, 1860

Section 375 read with Section 376 of the Indian Penal Code, 1860 comes with a set of drawbacks which is why the law has till now failed to curb the growing numbers of rape cases in the developing land of India. Three significant loopholes that these provisions have been wearing since 1860 have been discussed hereunder. 

Restricted definition of the term ‘rape’

“Sexual intercourse by man with his own wife, the wife not being under 15 years of age, is not rape,” says Section 375 of the Indian Penal Code, 1860 which has some very antiquated beliefs as its exception clause. Rape is punishable under Section 376 of the Indian Penal Code, according to which, the rapist should be punished with imprisonment of either description for a term of not less than 7 years but not less than life or for a term of up to 10 years, as well as a fine, unless the woman raped is his own wife and is not under the age of 12, in which case he should be punished with imprisonment of either description for a term of not less than 2 years, fine, or both. In light of the current situation, it is necessary to shift human perceptions and add a new dimension to the concept of rape. Almost all offences should have a clear interpretation rule set so that there are no loopholes or opportunities for injustice in the social environment. The recent modification in the concept of rape is owing to an increase in such conduct and a more lenient interpretation of the law.

Marital rape : a debatable concern

On May 11, 2022, the Delhi High Court issued its long-awaited decision on the criminalisation of marital rape. The bench couldn’t decide whether a sexual act committed by a man on his wife without her consent should be regarded a criminal or not, therefore it issued a divided decision. The Supreme Court will now hear the case, which is still unsettled. The case is around Exception 2 of Section 375 of the Indian Penal Code, which provides that any sexual act performed by a man on his own wife, even if done without her consent, is not rape as long as she is not a minor.  If statistics in this regard is given a chance to be viewed then according to the National Family Health Survey 5 (2019-2021) study, 18% of Indian women are unable to tell their husbands ‘no’ when they do not want to participate in sexual intercourse with them. According to the report, over one-fifth of married women in India had their permission in sexual intercourse with their spouses revoked. With such terrible statistics and conflicting judicial opinions, all one can expect in this regard is progressive and rational thinking in regard to marital rape in India.

Adult male victims of rape: need for legal recognition in India

Recognising male victims of sexual abuse as a distant reality has been overlooked by framing sexual violence as a feminist issue. The absence of legal action against male sexual victimisation is mostly due to decreased reporting of male sexual violence and victims’ reluctance to come forward. If a male is sexually assaulted by another male, Section 377 of the Indian Penal Code, 1860 applies; but, if he is assaulted by a girl, no particular legal provision exists. It is critical to pay close attention to the definitions, categories, and types of sexual victimisation that need to be altered in order to minimise gender prejudice.

Conclusion

Although India is a country with a high social status for women, there are still no strict protections for women. There are some laws  to protect their lives, but they seem to have many loopholes. Rape is considered the most horrific crime committed against women and statistics show that rape is prevalent in India. There is an essential difference between will and consent. Indian criminal law provides a good definition of consent. Will, on the other hand,  is  not yet clearly defined. In the absence of a correct definition, consent and will are interpreted as the same thing, resulting in decisions made by courts that are ambiguous and do not provide victims with adequate justice. Therefore, there is an urgent need to introduce a formal definition of testament into the Indian Penal Code. Section 375 of the Indian Penal Code is one of the more talked-about sections as amendments introduced in recent years have made significant changes to the section as a result of the increased number of rape cases in India, but it is still largely unresolved. There are a number of stipulations. A defect that needs to be addressed. There are many regulations  to regulate such horrific crimes, but when it comes to enforcing them, something is missing or they are struggling to control it. As a result, crimes can be interpreted in different ways, leading to  miscarriage of justice. The same requires major changes that can be achieved by changing the way we think about legislation.