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Karan Bir Singh is Attorney in the Law firm Japs Attorneys & Consultants since January 01, 2005 and is entrusted with Family law, Criminal Law, Civil Law, Trade Mark and Copyright matters as well as also deals in efficient structuring for business ventures, commercial transaction, investment structuring, estate planning, and asset protection, intellectual property rights protection and preparing contracts for business clients. 

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Section 375 of the Indian Penal Code, 1860 

Chapter XVI of the Indian Penal Code, 1860 has been subjected to changes from the heading ‘Of rape’ to that of ‘Sexual Offences’ by Act 43 of 1983. The definition of rape has changed significantly to include non-penile penetration, although it remains gender-specific when committed against a female. Previously, in Sakshi vs. Union of India (2004), a public interest litigation seeking a ruling that non-penile penetration should be classified as rape was denied by the Supreme Court, but the Court’s encouragement to change the definition prepared the path for the change of law. The new definition, which raises the age of consent to 18, is crucial since it now considers any type of penetration under the Section with a female under the age of 18 to be rape. If the woman was still under the age of 18 and over the age of 15, it would not have been considered rape in a married context as long as the agreement was given under Exception 2 of the provision. However, the Supreme Court ruled in Independent Thought vs. Union of India (2017) that the provision is unlawful in so far as it affects girls aged 15 to 18. Exception 2 must now be read as, ‘sexual intercourse or sexual acts by a man with his own wife who is not under the age of eighteen is not rape.’ A brief reading of Section 375 of the Indian Penal Code, 1860 reveals that it is a gender-specific provision for the protection of women, as rape can only be committed by a man. The Section is split into two parts. Clauses (a) to (d) in the first part of the Section merely state what acts undertaken by a man with a woman would constitute rape if they were committed in any of the seven situations specified in the second part of the provision. While Section 375 allows for consenting penetrative actions (which includes oral and anal intercourse), Section 377 made the same acts of penetration illegal regardless of consent. This results in a legal schism. Section 377’s prohibition of a consensual sexual relationship is based on no recognised or logical grounds. Consensual sexual expression and intimacy between adults in privacy cannot be considered “carnal intercourse against the natural order.” It is necessary to note that the provision has now been repealed after the Supreme Court made a landmark decision in Navtej Singh Johar vs. Union of India (2018).

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 medical 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’s 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 knowledge of 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.

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December 8, 2022

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