Rape is a heinous crime that has severe consequences, and it is crucial to understand the provisions of rape under the Indian Penal Code (IPC) to ensure justice for survivors and create a safer society.
- Definition of Rape : Under Section 375 of the IPC, rape is defined as the unlawful sexual intercourse with a woman without her consent or against her will. It is essential to note that under recent amendments, the scope of rape has been expanded to include all gender identities, making it a gender-neutral crime.
- Consent and Lack of Consent : Consent plays a vital role in determining if an act qualifies as rape. The absence of consent or the presence of consent obtained through force, coercion, or under the influence of substances is considered rape. It is crucial to understand that a woman’s consent must be freely given, voluntary, and informed.
- Age of Consent : The IPC also addresses the age of consent for engaging in sexual activities. According to the “Protection of Children from Sexual Offences (POCSO) Act,” the age of consent is fixed at 18 years. Any sexual act involving a person below this age is considered rape, regardless of consent.
- Marital Rape : It is essential to highlight that India does not yet have a specific law criminalizing marital rape. However, the Supreme Court of India has acknowledged that non-consensual sexual intercourse within a marriage can be treated as a violation of a woman’s fundamental rights under the Constitution.
SECTION 375 – A man can be considered to commit “Rape” if they engage in any of the following actions :
- Penetrating their penis into the vagina, mouth, urethra, or anus of a woman, or persuading her to do so with him or someone else.
- Inserting any object or body part, other than the penis, into the vagina, urethra, or anus of a woman, or persuading her to do so with him or someone else.
- It is illegal to forcefully penetrate any part of a woman’s body without her consent.This includes penetration into the vagina, urethra, anus, or any other body part.
- It is also illegal to use one’s mouth on a woman’s vagina, anus, or urethra without her consent.
- These actions are considered serious offences under specific circumstances outlined in the law.
- Without her consent.
- Against her will.
- With her consent obtained through fear of harm.
- When a man knows that a woman is giving her consent because she believes he is her husband or another person she is lawfully married to, even though he is aware that he is not her actual spouse.
- If she is unable to understand the nature and consequences of an action due to factors like unsoundness of mind, intoxication, or the influence of stupefying substances, their consent is not considered valid.
- If she is under the age of sixteen, consent is not valid, regardless of whether she gives it or not. The penetration is sufficient to constitute the sexual intercourse necessary for the offence of rape.
- If she is unable to convey her consent.
Explanation 1 : In this context, “vagina” includes labia majora as well.
Explanation 2 : ‘’Consent’’ refers to a clear and voluntary agreement where a woman indicates her willingness to participate in a specific sexual act through words, gestures, or any form of communication, verbal or non-verbal.
If a woman does not physically resist penetration, it doesn’t automatically mean she has given consent for sexual activity. However, there are a couple of exceptions to this :
Exception 1 : A medical procedure or intervention is not considered rape.
Exception 2 : Sexual intercourse or sexual acts between a husband and wife, where the wife is not under the age of fifteen, is not considered rape.
SECTION 376 – (1) The IPC provides for stringent punishment for the crime of rape to ensure justice and deter potential offenders. The punishment can range from a minimum of imprisonment for at least ten years, up to life, and may include a fine depending on the circumstances, severity, and repeat offences. In extreme cases, the court may also award the death penalty.
(2) However, there are exceptions as stated in sub-section (2) of the law.
- A police officer who commits rape within their assigned police station or the premises of a station house shall be punished with rigorous imprisonment for a minimum of ten years, which may extend to life imprisonment, and may also be liable to pay a fine.
- It states that if a public servant, or a member of the armed forces commits rape against a woman who is in their custody or under the custody of someone subordinate to them, it is considered a crime.
- If someone working in a jail, remand home, or other custodial facility engages in sexual assault with an inmate, or if someone working in a hospital commits rape on a woman in that hospital, they can be held accountable under the law.
- If someone in a position of trust or authority towards a woman, such as a relative, guardian, teacher, or someone involved in communal or sectarian violence, commits rape. It also includes cases where the victim is pregnant or unable to give consent.
- Exercising control or dominance over a woman and committing rape.
- Committing rape against a woman with mental or physical disabilities.
- Causing serious bodily harm, disfigurement, or endangering the life of a woman while committing rape.
- Engaging in repeated acts of rape against the same woman, is a serious offense. The punishment for such actions includes a minimum of ten years of rigorous imprisonment, which can extend to a life sentence, meaning imprisonment for the rest of the perpetrator’s natural life. Additionally, they may also be subject to fines.
EXPLANATIONS FOR SUB-SECTION (2) –
- “Armed forces” refers to the navy, army, and air force, including any member of these forces as defined by the current laws. This also includes paramilitary forces and auxiliary forces that are under the control of the Central or State Government.
- “Hospital” refers to the area of the hospital, including other institutions for the care of people during recovery or in need of medical attention.
- “Police officer” has the same meaning as “police” as defined in the Police Act, 1861.
- “Women’s or Children’s Institution” refers to a place specifically created and operated to provide support, shelter, and care for women or children in need. This can include orphanages, homes for neglected women or children, widow’s homes, or any other type of institution with a similar purpose.
(3) If someone commits rape on a girl under sixteen years of age, they will be sentenced to rigorous imprisonment for at least twenty years, and it may extend to life imprisonment. Additionally, they will be liable to pay a fine, which will be determined based on the victim’s medical expenses and rehabilitation needs. Fine imposed under this sub-section shall be paid to the victim.
SECTION 376 A – If a person commits an offence under section 376, resulting in the death of a woman or causing her to be in a persistent vegetative state, they will be punished with rigorous imprisonment for a minimum of 20 years, and potentially a life sentence which means remaining natural life.
SECTION 376 AB – Anyone who rapes a girl under the age of twelve will be sentenced to at least twenty years in prison, with the possibility of life imprisonment or the death penalty. A fine will also be imposed to cover the victim’s medical expenses and rehabilitation. Any fine imposed under this section will be paid to the victim.
SECTION 375 B – Engaging in non-consensual sexual intercourse with wife, during separation, can lead to imprisonment ranging from two to seven years, as well as a possible fine.
“Sexual intercourse” shall mean any of the acts mentioned in clauses (a) to (d) of section 375.Sexual intercourse by person in authority.
SECTION 376 C – Whoever, being-
- in a position of authority or in a fiduciary relationship; or
- a public servant; or
- superintendent or manager of a jail, remand home or other place of custody established by or under any law for the time being in force, or a women’s or children’s institution; or on the management of a hospital or being
- on the staff of a hospital, abuses such position or fiduciary relationship to induce or seduce any woman either in his custody or under his charge or present in the premises to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than 5 years, but which may extend to 10 years, and shall also be liable to fine.
In this section, “sexual intercourse” shall mean any of the acts mentioned in clauses (a) to (d) of section 375.
For the purposes of this section, Explanation I to section 375 shall also be applicable.
“Superintendent“, in relation to a jail, remand home or other place of custody or a women’s or children’s institution, includes a person holding any other office in such jail, remand home, place or institution by virtue of which such person can exercise any authority or control over its inmates.sThe expressions “hospital” and “women’s or children’s institution” shall respectively have the same meaning as in Explanation to sub-section (2) of section 376 ,expenses and rehabilitation of the victim. Provided further that any fine imposed under this section shall be paid to the victim.
SECTION 376 D– In cases where a woman is raped by a group of people or individuals with a shared intention, each person involved will be considered guilty of the offense of rape. The punishment for this crime is rigorous imprisonment for a minimum of twenty years, up to life imprisonment (meaning imprisonment for the rest of their natural life), along with a fine.The amount of the fine will be decided based on fairness and reasonability to cover the victim’s medical expenses and rehabilitation.Any fine imposed under this section will be paid to the victim.
SECTION 376 DA – In Cases where a group of people or individuals acting together sexually assault a girl under the age of sixteen, each person involved will be considered guilty of rape. The punishment for this offence is life imprisonment, which means being imprisoned for the rest of their natural life, along with a fine. The amount of the fine will be decided based on fairness and reasonableness to cover the victim’s medical expenses and rehabilitation.Any fine imposed under this section will be paid to the victim.
SECTION 376 DB – .In cases where a group of people or individuals act together to rape a girl under the age of twelve, each person involved will be considered guilty of rape. The punishment for this crime is either life imprisonment, which means being imprisoned for the rest of their life, along with a fine, or the death penalty.The amount of the fine will be decided based on fairness and reasonableness to cover the victim’s medical expenses and rehabilitation.Any fine imposed under this section will be paid to the victim.
SECTION 376 E – Whoever has been previously convicted of an offence punishable under section 376 or section 376 A or section AB or section 376 B or section 376 D or section 376 DA or section 376 DB, subsequently convicted of an offence punishable under any of the said sections shall be punished with imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life, or with death.
Understanding the provisions of rape under the Indian Penal Code is essential for promoting a safe and inclusive society. By raising awareness about consent, age of consent, marital rape, and the severity of punishments, we can collectively work towards preventing such heinous crimes and providing justice to survivors.
https://main.sci.gov.in/supremecourt/2017/24828/24828_2017_5_1501_41360_Judgement_30-Jan-2023.pdf – SUPREME COURT OF INDIA