According to the latest data released by the National Crime Records Bureau (NCRB), India, around 88 rape cases are recorded every day. Considering the growing ratio of rape cases, it is really important that people of India must be aware about the Section 375.
Section 375 of IPC defines rape as a criminal offence. The Act states that a man is said to commit rape when he has sexual intercourse with a woman without her consent, against her or or if she is a minor. Under Section 375 of IPC, merely the penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
What is Section 375?
Section 375 of the Indian Penal Code defines rape as "Sexual intercourse with a woman, without her consent, against her will, by coercion, misrepresentation or fraud or at a time when she has been duped or intoxicated, or is of unsound mental health and in any case if she is under 18 years of age."
It's rape if it falls under the given categories:
1. Against her will.
2. Without her consent.
3. With her consent, when it 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. But the girl has given her consent because she believes that she is lawfully married to him.
5. With her consent, when she was intoxicated or in the state of unsound mind or the administration by him personally or through another of any stupefying or unwholesome substance, she doesn’t understand the consequences of the act for which she gives consent.
Exceptions to Section 375 of Indian Penal Code:
(1) If a woman doesn’t physically resist penetration, then it will be regarded as the sexual activity.
(2) A medical intervention or procedure shall not be considered as an offence of rape.
(3) Sexual intercourse by a man with his wife who is older than 18 years of age.
Amendment to Section 375 of IPC
The Criminal Law (Amendment) Act, 2013, also known as the Nirbhaya Act was passed in Parliament to amend Section 375. The amendment was majorly done to rule out the ambiguity that existed in the previous law and created room for the strict punishment during the occurrences of sexual violence. The section was also altered specifically to define Sexual Assault meaning.
Sexual Assault means:
(a) Insertion of penis into the vagina, the anus or urethra or mouth of any woman or child or makes her do so with him or any other person.
(b) Insertion of an object or a part of the body (other than the penis) into the vagina, the anus or urethra or mouth of a woman or makes her do so with him or any other person.
Introduction to any extent by a person of an object or a part of the body (other than the penis) into the vagina or anus or urethra of a child or makes her do so with him or any other person.
(d) Manipulating any part of the body of a child so as to cause penetration of the vagina (which term shall include labia majora) anus or the urethra of the offender by any part of the child's body.
Punishment for rape provided under Section 376 of IPC
Whoever commits the rape will be punished with rigorous imprisonment for a term which shall not be less than seven years. In case a person is a medical officer, public officer, police offer or a public servant might get imprisoned for at least 10 years if commits rape. The punishment can also extend to imprisonment for life, and shall also be liable to fine.
Top Landmark Judgments on Section 375 IPC
Let’s have a look at the top landmark judgments on the Section 375 IPC
1. Independent Thought Vs. Union of India
In the case, Independent Thought Vs. Union of India,The main issue taken up by the petitioner which is a registered society since 2009 and has been working for the protection of child rights is whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape? They filed a writ petition for the same under Article 32 of the COI 1950 with a motive to bring the interest of the court towards the violation of the bodily rights of girl children all over the country who are married between 15 to 18 years of age..
The Court found in favour of the petitioner, holding that the marital rape exemption should only cover cases where the woman is 18 years or older and favoured to strike down the Exception 2 to section 375 of the IPC on the grounds that it is arbitrary, capricious, whimsical and violative of a girl child’s and clearly not fair, just and reasonable and hence stands in violation of Articles 14, 15, and 21 of the COI 1950. It was further held discriminatory and violative of Article 14 i.e. Right to Equality. It was also held to be inconsistent with the provisions of POCSO 2012 which must prevail..
The murder and rape incident of the 2012 Delhi gang-involved a rape and violent attack that happened on 16 December 2012. The incident occurred when a 23-year-old female was assaulted, gang-raped, and brutalised in a private bus that the girl and her male friend had boarded.Unfortunately, she died after two days of treatment. This incident created widespread worldwide attention.
In this case, the Supreme Court declared death penalty to four of the accused among six. The boy who was a juvenile was convicted by the Juvenile Justice Board. He was sent to the correctional home. The other one committed suicide before the judgment came out.
3. Harpal Singh & others Vs. State of Himachal Pradesh
In this case, the mother asked her daughter (the victim) who was less than 16 years to visit her aunt in the village. While she was planning to go out, suddenly the accused came to her. He told her that her brother was in dispensary as he got sick. She rushed with him. She found that she was locked with him along with other two men. Against her will, they committed sexual intercourse with her. Later on, the family decided to keep mum. But, when the matter got published in a newspaper, the police started the enquiry. The accused held that the girl gave consent for the same.
The Supreme Court found enough evidence which were clearly indicating that her age was below 15 years old at the time of sexual intercourse. At this age, her consent was no consent at all. The accused were charged of rape under Section 376 of the Indian Penal Code.
4. Tulsidas Kanolkar Vs. The State of Goa
The victim was underdeveloped and her Intelligence Quotient was not even 1/3rd of what a normal person. One day, the parents of the victim noticed her swollen legs. There were signs of advanced stage of pregnancy. Her parents asked her about the accused and then she pointed fingers at him. The case was filed against him.
It was held that the accused took advantage of the helplessness and mental retardation of the patient. In such a case, there is no question of consent because a mentally challenged girl cannot give consent. Submission also does not imply consent due to fear or vitiated by duress or impaired due to mental retardation. The accused was punished to pay a fine of Rs. 10000 and undergo imprisonment of 10 years.
Manjit Kaur filed a complaint against the accused - Bhupinder Singh. He developed intimacy with her and then asked her to marry after disclosing himself as an unmarried person. Accused - Bhupinder Singh had put a pressure on her to get married as soon as possible in a Gurudwara through simple ceremony. He advised her that permission can be taken gradually from the parents. Later on, she became pregnant. But accused got her aborted against her wishes. She again became pregnant.
One day she met the friends of Bhupinder Singh - Devinder Kumar Bansal and Vinod Sharma. They were the close friends of her husband Bhupinder Singh. They told her that accused - Bhupinder Singh was already married with Gurinder Kaur and has a child. She tried to contact the accused after knowing the fact, but he was not found. So, she filed a complaint against him.
The Punjab & Haryana High Court held the accused liable under sections of IPC including Section 376 for rape. The women had sexual intercourse with him only because of the reason that she considered him as her husband but in reality, but legally he was not her husband.
Q1. What is the meaning of rape under IPC Section 365?
Ans. Rape is defined as a sexual intercourse with a woman without her consent or getting her duped/intoxicated or doing a fraud with her or is of unsound mind and also in case she is 18 years of age.
Q2.What are the exceptions under section 365?
Ans. Exceptions to section 365 IPC are when the sexual intercourse is made with a man with her consent. Sexual intercourse is done by a woman who is not under 18 years with his husband.
Q3. What is the difference between section 365 and 376 IPC?
Ans. Section 365 defines a rape, whereas the section 376 IPC defines punishment for the rape.
Q4. What is consent under Section 375?
Ans. Consent is defined as a clear and a voluntary communication that a woman gives for the sexual act. However, marital rape is an exception as it is not a crime under the Indian Penal Code as long as the woman is 18 years of age.