SECTION 375 IPC - Indian Penal Code - Rape


Description

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 part 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.

Explanations

  1. For the purposes of this section, “vagina” shall also include labia majora.

  2. Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act;

    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 as consenting to the sexual activity.

Exceptions

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

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

1 Criminal Law (Amendment) Act, 2013



Section 375- Rape
The fourth most common crime against women in India is rape. As per the 2013 annual report of the National Crimes Records Bureau (NCRB), in 2012 over 24, 923 cases of rape were reported across India, out of which, 98% of the cases had someone known to the victim as accused.
As a large number of cases go unreported in India, it has been characterized as one of the countries with the lowest per capita rates of rape being reported. However, in recent years, the willingness to report rape cases has increased as several incidents of rape has received extensive media attention and has stimulated public protest which ultimately led to reforming the rape laws by the Government of India.

What amounts to rape under section 375?

Rape under section 375 of the Indian Penal Code includes all or any of the following acts by a man against a woman:

 
  • Penetration of a man’s sexual organ (penis) into a woman’s mouth, vagina, urethra or anus or making her do so with him or someone else; or
  • Inserting any object, except the penis, into a woman’s vagina, urethra or anus or making her do so with himself or someone else; or
  • Manipulating any body part of the woman to cause penetration into her vagina, urethra, anus or any other body part or making her do so with himself or someone else; or
  • Applying his mouth to a woman’s vagina, urethra or anus or making her do so with himself or someone else.
 

The abovementioned acts must take place under the following circumstances to constitute rape:
 

  • Against her will;
  • Without her consent;
  • With her consent, if such consent is obtained by causing her fear of death or hurt for herself or for someone she knows;
  • With her consent, if she believes the man she is engaging with sexually is her husband;
  • With her consent, where due to unsoundness of mind or intoxication, the woman is not able to fully understand the nature and consequences of the act she consents to;
  • With or without the consent of a woman who is below 18 years of age;
  • When the woman is unable to communicate consent.
 

Consent as mentioned under Section 375

Consent is defined as clear, voluntary communication that the woman gives for a certain sexual act. Lack of physical injuries from the incident does not imply that consent was involved in the incident. Medical procedures or interventions do not constitute as rape in the absence of consent.

However, marital rape, i.e. rape by one spouse of another is as an exception to giving consent as marital rape is not a crime under the Indian Penal Code, as long as the woman is above 15 years of age. In October 2017, the Supreme Court stated that the act of sexual intercourse by a husband with his wife who is under the age of majority (18 years) would also be treated as rape. While reading down the exception the apex court also changed the age for consent from 15 to 18 years.

Exception to section 375

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 is guilty of rape on his own wife under the Indian Penal Code when she is over 15 years of age on account of the matrimonial consent that she has given.

In a case where a girl below the age of 15 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 of 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.

Amendment to section 375

The Criminal Law (Amendment) Act, 2013 also known as the Nirbhaya Act is an Indian legislation which was passed by the Lok Sabha on 19th March 2013 and the Rajya Sabha on 21st March 2013 to amend the Indian Penal Code, Indian Evidence Act, and Code of Criminal Procedure in relation with laws related to sexual offences. The Bill received the assent from the President on 2nd April 2013 and came into force from 3rd April 2013. The Bill was brought into force by the President of India, Pranab Mukherjee in light of the protests in the 2012 Nirbhaya rape case.

Although a lot of provisions were added and amended through the Amendment act, however, the most important change that has been made is the change in the definition of rape under IPC. Initially, the Amendment Act sought to change the word rape to sexual assault but the word ‘rape’ has been retained in Section 375 of the Act and it has been extended to include acts in addition to vaginal penetration. The section now includes the acts like penetration of penis into vagina, urethra, anus or mouth; or any object or any part of body to any extent, into the vagina, urethra or anus of another woman or making another person do so; to apply mouth or touching private parts constitutes the offence of sexual assault.

The section also clarifies that penetration means "penetration to any extent", and lack of physical resistance is immaterial for constituting an offence of sexual assault. Except in certain aggravated situations, the punishment will be imprisonment not less than seven years but which may extend to imprisonment for life, and shall also be liable to fine. In aggravated situations, punishment will be rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.


See the video below to know more about IPC Section 375 charges, punishment and relief




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