Analysis of Section 375 of the Indian Penal Code, 1860
Section 375 of the Indian Penal Code
Author : Neha Singh
The Section 375 of Indian Penal Code defines rape as sexual intercourse with a woman against her will, without her consent by coercion, misrepresentation or fraud or at a time she has been intoxicated or duped, or is of unsound mental health and in any case if she is under the age of 18 years. Moreover, Section 375 of IPC have two exceptions-
Exception 1- A medical procedure or intervention shall not constitute rape.
Exception 2- Sexual intercourse or sexual act by a man with his own wife, the wife not being under fifteen years of age, is not rape.
The Indian penal Code was drafted in colonial India under chairmanship of Lord Macaulay and there have been 2 amendment on Section 375 in 1983 and 2013. The main ingredients of the offence are a sexual intercourse by man with a woman and the circumstances must fall under any of the 7 clauses of the section.
Explanation of the given clauses through case laws:
Against her will
The first clause may create confusion but is also very necessary to be stated. Against her will does mean without the consent of the woman but without the consent does not implicitly state against the will of the woman.
This clause directs towards the presence of senses of the woman and is capable of consenting to the act. In the case of State of U.P. vs Chottey Lal (2011) 2 SCC 550, the court upheld the clarification of the clause as an intercourse done despite of the resistance of the woman.
Without her consent
Consent is a conscious agreement to the act and absence of it from the intercourse is the essence of rape. Consent needs to be obtained prior to the act either expressly or implicitly.
In the case of Mahmood Farooqui vs State of NCT of Delhi (2017) CLJ 944, the court redefined consent and stated that “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”.
Consent acquired through coercion, misinterpretation or fraud
Consent given in any of the three of the circumstances would not amount to consent as the woman’s decision is being influenced rather than of the free will. In the case of Rao Harnam Singh, Sheoji Singh v. State AIE 1958 Pun 123, the Supreme court laid down the distinction between consent and submission.
Consent acquired through intoxication, duping or of unsound mind
This clause was added by the amendment made by parliament in Criminal Law Act in 1983. This clause is to safeguard the women who are not aware of the nature of the said act. In the case of Tulshidas Kanolkar v. State of Goa (2003) 8 SCC 590, the court ordered a conviction for the accused of rigorous imprisonment of 7 years and held that consent should be established rather than presumed in this context.
Consent acquired under the misconception that the other person is their husband
Woman believing that the other person is her lawfully wedded husband and giving the consent to intercourse while the person is pretending to be so then that consent is not valid.
In the case of Bhupinder Singh v. Union Territory of Chandigarh (2008) 3 Cri.LJ 3546 (SC), the Supreme Court ordered conviction of the person for obtaining consent through misinterpretation and fraud and sustained the offence even after delay of filing complaint.
Consent by a minor girl who has not attained the age of 18
The age of consent was also upgraded in the amendment of 1983 and in the case of Harpal singh (AIR 1981 SC 361) the apex court specified that even if the minor is willing to the act it would amount to rape as they are fit to made consent.
The Exception 2 of this section has been in more controversy than that of the clauses and is alleged to be arbitrary of the very own section and fundamental rights. Not that only it distinguishes between married woman and unmarried woman without reasonable nexus, allows marital rape but also is in contradiction to the POCSO Act.
In the case of Independent thought vs Union of India (2017) 10 SCC 800, the Supreme Court criminalized intercourse with wife that is under the age of 18 but the judgement did not interfere on the matter of marital rape. The court upheld that exception 2 is violative of fundamental rights and is correspondingly applicable to the women above 18 in forceful sexual relations.
Conclusion
Although the Section 375 is said to be a progressive provision but it is also pointed out as anti-sodomy law and absence of clauses for rape against men has been condemned. The drastic low conviction rates in the rape cases has also been criticized across the years.
The main issue in these cases occur to be lack of evidence because of which many of the cases go unreported. The society has to be to progress and system of blaming the victim needs to depart. The laws are said to be a reflection of society hence the said flaws needs to be addressed by the society first for the law to adopt.
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