INTRODUCTION

Historically, “Raptus,” the generic term of rape was to imply violent theft, applied to both
property and person in the Roman culture. It was synonymous with abduction and a woman's
abduction or sexual assault, was merely the theft of a woman against the consent of her guardian
or those with legal power over her. The harm, ironically, was treated as a wrong against her
father or husband, women being wholly owned subsidiaries 1.Although Roman law in the
historical period recognized rape as a crime, the rape of women is a pervasive theme in the myths
and legends of early Rome2.Rape in the English sense of “forced sex” was more often expressed
as stuprum, a sex crime committed through violence or coercion (cum vi or per vim)3.

In some cultures, rape was seen less as a crime against a particular woman than as a crime
against the head of the household or against chastity. As a consequence, the rape of a virgin was
often a more serious crime than of a nonvirgin, even a wife or widow, and the rape of a prostitute
or other unchaste woman was, in some laws, not a crime because her chastity was not harmed.
Furthermore, the woman's consent was under many legal systems not a defense. In 17 th-century
France, even marriage without parental consent was classified as rape 4. The penalty for rape was
often a fine, payable to the father or the husband whose “goods” were “damaged5’.

In Islamic criminal jurisprudence, the majority of Muslim scholars believe that there is no
punishment for a woman forced to have sex6.According to a Sunnihadith, the punishment for
committing rape is death, there is no sin on the victim, nor is there any worldly punishment
ascribed to her7.

1
C. Gillian, Women in Late Antiquity: Pagan and Christian Life-styles (Oxford University Press, 1993).
2
 Moses DC. Dumbarton, Dunbarton Oaks, The Validity of Coerced Consent in Roman Law, (in) Consent and
Coercion to Sex and Marriage in Ancient and Medieval Societies, p. 50.
3
Gordon P. Baltimore, Some Unseen Monster: Rereading Lucretius on Sex, (in) the Roman Gaze: Vision, Power,
And The Body, p. 105 (Johns Hopkins University Press, 2002).
4
Sedney M.. ‘Rape (Crime)’ Grolier Multimedia Encyclopedia. (Scholastic Library Publishing House, 2006 )
Available from: http://gme.grolier.com 
5
Barnes TD, Constantine and Eusebius, p. 220 (Cambridge: Harvard University Press, 1981).
6
Qudamah M al-Din Ibn, al-Mughni; p. 159. Available from: http://www.geo.tv/zs/Zina_article_Final.pdf [Last
accessed on 2016 May 4].
7
Lucas SC. Leiden, Constructive Critics, Hadīth Literature, and the Articulation of Sunnî Islam; p. 106. (Brill
Publishers, 2004)

1
In some laws the woman might marry the rapist instead of his receiving the legal penalty. This
was especially prevalent in laws where the crime of rape did not include, as a necessary part, that
it be against the woman's will, thus dividing the crime in the current meaning of rape, and a
means for a couple to force their families to permit marriage8.

RAPE AS CRIME: AN OVERVIEW

The United Nations defines violence against women as “any act of gender-based violence that
results in, or is likely to result in, physical, sexual or psychological harm or suffering to women,
including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in
public or in private life” (General Assembly Resolution 48/104).

The definition of rape differs according to factors such as time and place, however rape is
recognized as a crime that typically is committed by a man forcing another person to have sexual
intercourse against their will, intercourse by force. Even though it is not only men who commits
rape, rape is not always the outcome of an intense or obsessive desire for sexual gratification but
mostly men employs sexual violence or rape as a method to exercise their control over the
women to maintain the positions of power. The men motivated by the combination of power and
anger especially in a patriarchal society prove their masculinity by exerting sexual violence over
women.

2.2 Historical Perspective:

In ancient times, rape was socially accepted as something that fits within the rules of war. 9 and
during the Middle Ages rape was not regarded as a crime, so long as the war satisfies the criteria
of being ‘just’.10Rape was considered to be a reward, a bonus for soldiers and at times even
became a way of measuring victory.11In 1863 the Lieber Code was drafted, which provided

8
 Aquilia L, McGinn TA.. Prostitution, Sexuality and the Law in Ancient Rome ( Oxford: Oxford University Press;
1998)
9
K.D. Askin, War Crimes Against Women; Prosecution in International War Crimes Tribunals, 21, (The Hague:
Kluwer Law International Journal, 1997)
10
Ibid
11
It was not until the late Middle Ages that formal prosecution for violations of war crimes took place. In 1474 Sir
Peter Hagenbach was convicted of rape committedby his troops, although this was only because he did not declare
war and therefore the war was considered illegal. See: K.D. Askin, War Crimes Against Women; Prosecution in
International War Crimes Tribunals,(29.The Hague: Kluwer Law International ,1997)

2
immunity for women and prohibited rape by incorporating the penalty of death. 12The Hague
Conventions of 1899 and 1907 do not speak of rape or sexual violence; however they refer to
‘family honour’ which suggests that sexual violence and rape are prohibited.13

As per Halsbury’s Law of England, it is not necessary to prove the completion of sexual
intercourse by the emission of seed; intercourse is deemed complete upon proof of penetration
only. The slightest degree of penetration is enough. If penetration cannot be satisfactorily proved,
the defendant may be convicted of attempted rape; if the intent is not proved, he may be
convicted of indecent assault. But, sexual intercourse by a man with his wife, the wife not being
under fifteen years of age, is not rape at all.

2.3. Definition of rape in India : an statutory overview:

The history of Rape laws in India begins with the enactment of the Indian Penal Code (IPC) in
1860 covered under Section 375 and 376. According to the original provision as in Section 375,
a man is said to have committed rape who, except in the case hereinafter excepted, has sexual
intercourse with a woman under circumstances falling under any of the five following
descriptions: (1) Against her will, (2) Without her consent, (3) With her consent, when her
consent has been obtained by putting her in fear of death or of hurt, (4) With her consent when
the man knows that he is not her husband, and her consent is given because she believes that he
is another man to whom she is or believes herself to be lawfully married, and (5) With or without
her consent when she is under 16 years of age.

This definition explains that penetration is sufficient to constitute the sexual intercourse
necessary to the offence of rape. It gives an exception that sexual intercourse by a man with his
own wife, the wife not being under 15 years of age will not constitute rape. This section defines
rape as forcible penetration of the vagina by the penis. This raises questions about the adequacy
and sufficiency of this definition of rape. The scope of the law does not extend to acts of forced
oral sex, sodomy or penetration by foreign objects. This form of sexual violence is especially
prevalent among children and young girls.14It is included within the ambit of Section 354 which
12
Supra note 4 at p. 9.
13
The Hague Convention (IV) on the Laws and Customs of War on Land and Regulations concerning the Laws and
Customs of War on Land, Art. 46., 18 October 1907.
14
Sudesh Jhaku v. K.C.J and Others [1996(3)AD Delhi 653]
+

3
deals with outraging the modesty of a woman. Inclusion with Section 354 is a gross denial of
justice as it prescribes a paltry sentence of two years for such a serious offence. It was in direct
violation of the right to life with dignity and personal liberty available under Article 21 of the
Constitution. This problem was pointed out by the NGO Sakshi in the form of Public Interest
litigation15.

It was argued here that this narrow definition of rape runs contrary to contemporary
understanding as the intention to humiliate and degrade the sexual integrity and personal space of
its victims. The Supreme Court taking cognizance of this, directed the Law Commission to
review the law on rape. The 172nd Report dated March 25, 2000 made recommendations to widen
the ambit of the law to include forced oral sex, sodomy and penetration by objects. Also it
recommended substituting the offence of rape with the offence of sexual assault. But nothing
came out of this report and there was no change with respect to this aspect till the Criminal Law
Amendment Act, 2013.

2.4. The most important factor- consent of victim:

The absence of consent is what distinguishes rape from ordinary consensual sexual intercourse.
Initially there was emphasis by the judiciary on the use of force and physical injuries on the body
of the victim to prove that there had been rape. Passive submission would not constitute absence
of consent. This made it extremely difficult for a woman to prove that she did not consent
beyond all reasonable doubt as is required under the law. Even forensic evidence cannot be
produced in all cases as unless the woman is medically examined within 24 years, it becomes
difficult to prove rape. This perception negatively impacts especially those cases where consent
is obtained by means of misrepresentation or fraud. This changed following the infamous
judgement of the Supreme Court in Tukaram v. State of Maharashtra16 which acted as a catalyst
for reform in rape laws. In the above case, Mathura a 16 year old tribal girl had been raped by
two policemen within the police compound. The Supreme Court set aside the conviction by the
High Court on the ground that she did not raise an alarm and there were no physical signs of
injury on her body. Technically the law did not prevent the court from perceiving non wilful
submission given as a result of force as no consent. Nowhere in the statute book has there been

15
Sakshi v. Union of India , AIR 2004 SC 3566
16
Tukaram v. State of Maharashtra, AIR 1979 SC 185

4
mentioned a need for physical marks of resistance or the use of force to signify lack of consent.
All that is needed to be proved is sexual intercourse “without consent” as is aptly laid down in
the legal definition. However the court held that the absence of injuries as also the fact that she
had been sexually active in the past showed that she was likely to have consented to the act.

Section 376 provides punishment for rape. According to this Section, whoever commits rape
shall be punished with imprisonment for life, or with imprisonment of either description for a
term, which may extend to 10 years, and shall also be liable to fine, unless the woman raped is
his own wife and is not under 12 years of age, in which case he shall be punished with
imprisonment of either description for a term, which may extend to 2 years or with fine or with
both.

At common law, the elements of rape consisted of carnal knowledge, force and the commission
of the act against the victim's will or without her consent. Today, these elements still exist in
many modern rape statutes in various commonwealth nations. In particular, three commonwealth
countries, England, Australia and India still retain some form of the traditional definition of rape.
Sexual intercourse in these statutes is defined solely as penile penetration of the vagina.
Although Australia's definition of rape uses the common law words 'carnal knowledge', it is
apparent from case law that this vague term embodies only vaginal sexual intercourse.

DEVELOPMENT OF ANTI RAPE LAWS IN INDIA AND CRIMINAL LAW

AMENDMENT ACT, 2013:

5.1. Criminal Law (Amendment) Act 1983

The rape law under IPC had gone through a lot of amendments 17.In 1983, amendment was made
and Section 376 (2), that is, Custodial Rape, Section 376 (A), that is, Marital Rape, and Section
376 (B to D), that is, Sexual Intercourse not amounting to rape were added. As per the Criminal
Law Amendment Act (1983), revealing the identity of a rape-victim is an offence. Though this
Act maintains more or less the same definition of rape, it introduces many new categories of
offence of sexual intercourse by persons in custodial situation-such as superintendents of
hospitals, remand homes, prisons, and police officials-with women in their custody. In cases of

17
Gaur KD, Text Book on Indian Penal Code, 207–18, (Universal Publishing Delhi, 2003)

5
custodial rape, burden of proof lies with men and if a woman victim makes a statement that she
did not consent, the court would believe that she did not consent.

This triggered a series of campaigns for changes in rape laws which finally led to the 1983
Criminal Law (Amendment) Act 1983. It produced the following results:

• Firstly it was held that consent in case of a woman who was of unsound mind or is under the
influence of intoxication at the relevant time will not be considered as valid consent. This is
basically the existing fifth clause of Section 375.

• A new category of offence that is custodial rape or rape by persons in authority was added in
the form of Section 376B to 376D of the Indian Penal Code18.

Section 376 C(b)19: Whoever, being a public servant, takes advantage of his official position and
induces or seduces, any woman, who is in his custody as such public servant or in the custody of
a public servant subordinate to him, to have sexual intercourse with him, such sexual intercourse
not amounting to the offence of rape, shall be punished with imprisonment of either description
for a term which may extend to five years and shall also be liable to fine.

Section 376C (c)20 : Whoever, being the 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 of a
woman's or children's institution takes advantage of his official position and induces or seduces
any female inmate of such jail, remand home, place or institution to have sexual intercourse with
him, such sexual intercourse not amounting to the offence of rape, shall be punished with
imprisonment of either description for a term which may extend to five years and shall also be
liable to fine.

Section 376D (d)21: Whoever, being on the management of a hospital or on the staff of a hospital
takes advantage of his position and has sexual intercourse with any woman in that hospital, such
sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of
either description for a term which may extend to five years and shall also be liable to fine.

18
Indian Penal Code, 1860
19
Section 376 C of Indian Penal Code, 1860
20
Section 376 C of Indian Penal Code, 1860
21
Section 376 D of Indian Penal Code, 1860

6
To put it simply if any of the persons in authority who are mentioned in the above sections by
reason of their position induce or seduce a woman in their authority or custody to have
consensual sexual intercourse with them not amounting to rape, they can be punished with a
sentence which may extend to five years and even may be made to pay a fine.

 Another Section 376 B was added which basically states that forced sexual intercourse
by a husband with his wife who has been living separately by virtue of a decree of law or
custom, is liable to imprisonment which may extend to two years and also may be made to pay a
fine.

 Introduction of a minimum punishment of seven years in case of offenders under Section

375(1) and ten years which may extend to life for offenders under Section 375(2). Clause two
basically deals with the notion of aggravated rape which includes custodial rape, gang rape, rape
of a pregnant woman and rape of minor girls under the age of twelve years.

 The Evidence Act, 1872 was amended by adding Section 114A. The effect was that the
onus of proof regarding consent could be shifted to the accused in case of custodial rape.

 Section 327 of the Crpc was amended to make a provision for in camera trials for
offences under Section 375 and Section 376. Publication of rape trials without the court’s prior
approval was made a bailable offence.

The 1983 improved the earlier situation to a great extent in the sense that custodial rape was
recognized as a separate offence. Recognition of the fact that it merits a greater punishment as it
involves an abuse of official position and powers associated and a violation of the trust reposed
in them by women under their care and authority is a big step forward. The second major
improvement was passing the burden of proving consent to the accused in such cases. This was
again much needed as because of their position of power they had the resources to erase or
destroy all evidences of the crime and even influence the victim and her family to drop charges
by means of threat and coercion. The law thus recognized the fact that these women were
incapable of defending themselves and hence the benefit of doubt must be given to them22.

5.1.1 An attempt to commit rape

22
MP Tandon, The textbook on Indian Penal Code, 300–4. (15th ed. Allahbad Law Agency, 1982)

7
An attempt to commit rape is punishable by half of the longest term of imprisonment for rape or
with such fine as provided for the offence 23. The courts have drawn a very line between
preparation to commit rape and attempt to rape. The difference between the two lies in the
greater degree of determination in the attempt 24. Prosecution has to prove that there was a
determination to fulfil the act under any circumstance or resistance. If however the act does not
go beyond preparation, it comes under Section 354 which deals with outraging the modesty of a
woman. Thus in a situation where there was an actual attempt to rape, the accused gets away
with a relatively minor sentence due to mere technicalities relied upon by the judiciary.

The most important case in this regard is that of Jai Chand v. State. Here the accused who was a
hospital orderly was accused of attempting to rape a hospital nurse. He had forcibly pushed her
down on the bed and had broken the strings of her pyjamas. But before he could proceed any
further the victim managed to push him away and reached the reception area of the hospital. But
the High Court held that since he had not attempted to stop her from leaving and had not even
undressed himself it was simply preparation and not attempt to rape. The law relating to attempt
to rape has been borrowed largely from English Common Law. However, contrary to English
Common Law, the insertion of objects or fingers in the vagina is not held to be attempt to rape in
India. This ambiguity results due to lack of legislation on the above topic. The judiciary when
dealing with attempt to rape relies on Section 511 of the Indian Penal Code with basically deals
with attempt to any kind of offence in general. There is need for clear and concise legislation on
the subject of attempt to rape. Reliance on case laws and judicial interpretations simply will not
do as it has lead to miscarriage of justice as proved in the case of Jai Chand v. State25and several
others.

5.1.2. Procedural aspects:

Punishment in the cases of ‘custodial rape’ or gang rape amounts to the minimum sentence of 10
years and the offence is cognizable and non bailable. Sexual intercourse by a man with his wife,
who is living separately from him under a decree of separation or under any custom or usage
without her consent, is punishable with imprisonment, which may extend to 2 years. This offence
is cognizable and bailable.
23
Section 511 of the Indian Penal Code, 1860
24
Rox v Jam1es Lloyd (1836) 7C and P817:173 E.R. 141.
25
AIR 1967 SC 63

8
The Supreme Court verdict of 201426 says that the rape trials must end within 2 months as
stipulated under law. The Supreme Court also directed trial courts to “strictly adhere” to existing
norms while asking them to rule out the possibility of “maneuvering” through undue long
adjournments. Section 309 of the Criminal Procedure Code (CrPC) provides that in every inquiry
or trial the proceedings should be held as expeditiously as possible and once the examination of
witnesses begins the same shall be continued on a day-to-day basis till all the witnesses are
examined. In cases that come under Section 376 (rape) and related offences under Sections 376
A to D of the IPC, the CrPC stipulates that “the inquiry or trial shall, as far as possible, be
completed within a period of 2 months from the date of commencement of the examination of
witnesses.” The victim of rape suffers mental and psychological trauma, which must be
addressed to provide a helping hand to enable her to cope with the trauma suffered and to tide
over her immediate and long-term needs so that she is able to lead a dignified and meaningful
life.

The Section 376 in dealing with sexual assault, in a very narrow purview lays down that, an
offence of rape within marital bonds stands only if the wife be less than 12 years of age, if she be
between 12 and 15 years, an offence is committed, however, less serious, attracting milder
punishment. Once, the age crosses the permissible limit there is no legal protection accorded to
the wife, in direct contravention of human rights regulations.27

The definition of rape (Section 375 IPC) has been criticized for other reasons as well by the
Indian and international women's and children organizations, who insist that including oral sex,
sodomy, and penetration by foreign objects within the meaning of rape would not have been
inconsistent with nay constitutional provisions, natural justice, or equity. Even international law
now says that rape may be accepted as the “sexual penetration, not just penile penetration, but
also threatening, forceful, coercive use of force against the victim, or the penetration by any
object, however slight.” Emphasis on these provisions is not meant to tantalize, but to give the
victim and not the criminal, the benefit of doubt28.

5.2. The Law Commission Reports:

26
Savarala Sai Sree V. Gurramkonda Vasudevarao & Ors. AIR 2014 SC 224
27
Women Rights Activists Available at http://www.worldpulse.com/pulsewire  [Last accessed on 2016 Nov 11].
28
Gonasalves L. Rape: Some reflections on the need to amend the existing law. CrLJ 2005, 241–53.

9
There are four major law commission reports29that address the law on rape-while two reports
recommend on the IPC in general within which the provision of rape is discussed, the other two
reports exclusively deal with reforms related to rape. These are as follows:

1. 42nd Law Commission Report

2. 84th Law Commission Report
3. 156th Law Commission Report
4. 172nd Law Commission Report.

Each successive Report is an improvement over the prior one addressing the issue, however,
many useful recommendations have not found their way into the Bills presented to Parliament.
The 172nd Law Commission Report had made the following recommendations for substantial
change in the law with regard to rape.

1. Rape should be replaced by the term ‘sexual assault‘

2. Sexual intercourse as contained in Section 375 of IPC should include all forms of
penetration such as penile/vaginal, penile/oral, finger/vaginal, finger/anal, and
object/vaginal
3. In the light of Sakshi v. Union of India and Others30 ‘sexual assault on any part of the
body should be construed as rape
4. Rape laws should be made gender neutral as custodial rape of young boys has been
neglected by law.
5. A new offence, namely Section 376E with the title ‘unlawful sexual conduct’ should be
created.

Section 509 of the IPC was also sought to be amended, providing higher punishment where the
offence set out in the said section is committed with sexual intent. Marital rape: Explanation (2)
of section 375 of IPC should be deleted. Forced sexual intercourse by a husband with his wife
should be treated equally as an offence just as any physical violence by a husband against the
wife is treated as an offence. On the same reasoning, Section 376 A was to be deleted. Under the

29
Sen R. Law commission reports on rape XLV, 44–5. (Eco Political Weekly. 2010)
30
[2004 (5) SCC 518],

10
Indian Evidence Act (IEA), when alleged that a victim consented to the sexual act and it is
denied, the court shall presume it to be so.

The Domestic Violence Act, 2005 (DVA) provides civil remedies to what the Section 498A of
IPC provision of cruelty already gave criminal remedies, while keeping the status of the matter
of marital rape in continuing disregard. Though Section 498-A deals with cruelty, to protect
women against perverse sexual conduct by the husband, there is no standard of measure or
interpretation for the courts, of ‘perversion’ or ‘unnatural,’ the definitions within intimate
spousal relations. Is excessive demand for sex perverse? Isn’t consent a sine qua non? Is
marriage a license to rape? These are some of the questions need to be answered 31.Section 3 of
the DVA, among other things in the definition of domestic violence, has included any act
causing harm, injury, anything endangering health, life, etc., mental, physical, or sexual.

It condones sexual abuse in a domestic relationship of marriage or a live-in, only if it is life

threatening or grievously hurtful. It is not about the freedom of decision of a woman's wants. It is
about the fundamental design of the marital institution that despite being married, she retains an
individual status, where she does not need to concede to every physical overture even though it is
only her husband.

5.3. Analysis Of The Criminal Law (Amendment) Act, 2013

On 16th December 2012, a female physiotherapy intern was beaten and gang raped by four men
in the capital. Despite treatment, she died from her injuries three days later. There were huge
protests all over the country demanding better safety for women in the country. The incident got
the attention of the international media and the Government faced criticism from all quarters.
The United Nations Entity for Gender Equality and Women Empowerment called upon the
government to do everything in their power to take up radical reforms, ensure justice and reach
out with robust public services to make women's lives more safe and secure. In the wake of this
unrest and furore the Government of India set up a three member committee headed by the
former Chief Justice of India Justice JS Verma, Justice Leila Sheth and Justice Gopal
Subramanium to look into the adequacy of the legislations that afforded protection and security
to the women in India. They were asked to submit a report within thirty days. In the report they
31
The Protection of Women from Domestic Violence Act 2005 (43 of 2005) Available
from: http://indiacode.nic.in/fullact1.asp?tfnm=2016 43 . [Last accessed on 2016 Nov 10].

11
submitted, they criticised the government, public apathy and an abysmal and old fashioned
police system as being the main cause and recommended drastic reforms in legislation30 Ss. (a)
penetration by penis into anus, mouth, vagina or urethra . Based on the recommendations of this
committee an anti rape ordinance was signed by the President and was passed by both the
Houses of the Parliament and thus the Criminal Law (Amendment) Act of 2013 came into
existence. It amends the Indian Penal Code (IPC), 1860, the Code of Criminal Procedure (CCP),
1973, the Indian Evidence Act (IEA), 1872 and the Protection of Children from Sexual Offences
Act, (PoCSO), 2012. This paper however talks about the amendments in the Act with respect to
rape and sexual assault only. Section 375 of the Indian Penal Code, 1860 limited rape to penile
vaginal penetration and stated that the victims could only be female and perpetrators male. The
Amendment Act of 2013 was a huge improvement over this in many ways. Firstly the offence of
rape was replaced with sexual assault. It includes within its ambit a wider range of sexual
offences than just penile vaginal penetration. It is also gender neutral and hence now both men
and women can be victims and perpetrators. Five new subsections were added to Section 375.
They are as follows:

 Ss. (a) penetration by penis into anus, mouth, vegina and urethra.
 Ss. (b) penetration by object into anus, vagina, urethra, mouth.
 Ss. (c) manipulates any part of the body of another person so as to cause penetration into
the vagina, urethra, anus or any part of body of such person or makes the person to do so
with him or any other person makes the other person do so to him or any other person.
 Ss (d) applies his mouth to the vagina, urethra, anus, penis of another person or 34 any
other person.
 Ss. (e) touching vagina, anus, breast, penis of the complainant or making the
complainant touch the accused’s vagina, anus, penis, breast or that any of circumstances
under which forced sexual intercourse would be held to be rape.

Section 375 after the amendment thus not only includes penetration by the penis but it also
includes other offences like forced oral sex, penetration by foreign objects, sodomy as also
forced sexual touching among other things. Subsections A, B, C has been taken from the
recommendations of the Justice Verma committee but Sections D and E are completely new
sections. Subsection D in the JS committee was defined simply as the offences of cunnilingus or

12
fellatio but in the Act these words have been replaced have been replaced with a more detailed
description of the offence. However an exception for medicinal or hygienic purposes was added
in the Act for all of the above offences. Prior to the Act Section 375 contained six circumstances
under which forced sexual intercourse would be held to be rape.

The first five of them were accepted in toto. The sixth was however amended to increase the age
of consent to 18 years from the initial age of 16 years. And a new seventh situation was added
which talks about cases where the person is unable to communicate consent. However sadly
enough it retained the exception of forced marital intercourse to rape. A new proviso has been
added that lack of physical resistance will not amount to consent. This position had already been
established in the Mathura rape case.

But many courts still continued to rely on the presence of physical injuries to convict the accused
as there was no formal legislation on the same. So by its inclusion in the Indian Penal Code,
there should be a change in the mindset of the judiciary.

A new section, 376A has been added which states that if a person committing the offence of
sexual assault, inflicts an injury, which causes the death of the person or causes the person to be
in a persistent vegetative state, shall be punished with rigorous imprisonment for a term, which
shall not be less than 20 years, but which may extend to imprisonment for life, which shall mean
the remainder of that person's natural life, or with death. In case of gang rape, persons involved
regardless of their gender shall be punished with rigorous imprisonment for a term, which shall
not be less than 20 years, but which may extend to life and shall pay compensation to the victim,
which shall be reasonable to meet the medical expenses and rehabilitation of the victim.

Certain changes have been introduced in the CrPC, 1973 and IEA, like the recording of
statement of the victim has been made more friendly and easy, character of the victim is
irrelevant for consideration, presumption of no consent where sexual intercourse is proved and
the victim states in the court that there has been no consent, etc.

The age of consent has been increased to 18 years, which means any sexual activity irrespective
of presence of consent with a woman below the age of 18 will constitute statutory rape.

13
The Criminal Law (Amendment) Ordinance, 2013 has been strongly criticized by several human
rights and women's rights organizations for not including certain suggestions recommended by
the Law Committee Report like, marital rape, reduction of age of consent, amending Armed
Forces (Special Powers) Act so that no sanction is needed for prosecuting an armed force
personnel accused of a crime against woman32.

SPECIAL CASES OF RAPE

Marital Rape :

33
Marital relationship is considered to be sacrosanct where husband is considered to be an
incarnation of God. Sex has been treated as obligatory in a marriage. 34Considering marriage as a
bond of trust and affection, a husband exercises sexual supremacy through any means possible.
The IPC through its Section 375 legalizes it, “Sexual intercourse by a man with his own wife, the
wife not being under 15 years of age, is not rape.” As a result, marital rape is not an offence
despite amendments, law commission reports, and new legislations.

It is argued that declaring marital rape an offence will bring “the potential of destroying the
institution of marriage.” This argument assumes that marriage as an institution is not based on
mutual consent and equality of rights. The fundamental right of a person over one's body, male
or female, is ignored in this assumption. In practice, this results in the wife's body being
considered the property of her spouse, regardless of her consent35.

The marital rape victims have to take refuge in Section 498-A of the IPC (“perverse sexual
conduct by the husband”), or to the Protection of Women from Domestic Violence Act 2005
(PWDVA). This Act came into force in 2006, effectively provides protection against marital rape
or other forms of sexual perversions and domestic violence. However, it offers only a civil
remedy for the offence.

32
The Criminal Law (Amendment) Ordinance, 2013
33
Nambi S, Marriage, mental health and Indian legislation. Presidential Address. (Indian J Psychiatry.2005)
34
Carstairs GM, Death of a Witch: A Village in North India ( London: Hutchinson; 1983)

35
Rath P. “ Marital rape and the indian legal scenario” Indian Law J. 2012; 5:212

14
In R Vs. R36, the House of Lords widened the scope of criminal liability by declaring that the
husband could be charged as a principal offender in the rape of his wife. This decision seems to
have obliterated the protection of the husband from such prosecution under the doctrine of
marital exemption. However, the above decision of the House of Lords has not been followed in
India- where marital exemption to the husband ‘still exists’.

In India marital rape exists de facto but not de jure. While in other countries either the legislature
has criminalized marital rape or the judiciary has played an active role in recognizing it as an
offence, in India however, the judiciary seems to be operating at cross-purposes.

In Bodhisattwa Gautam v. Subhra Chakraborty37 the Supreme Court said that rape is a crime
against basic human rights and a violation of the victim’s most cherished of fundamental rights,
namely, the right to life enshrined in Article 21 of the Constitution. Yet it negates this very
pronouncement by not recognizing marital rape38.

Though there have been some advances in Indian legislation in relation to domestic violence, this
has mainly been confined to physical rather than sexual abuse. Women who experience and wish
to challenge sexual violence from their husbands are currently denied State protection as the
Indian law in Section 375 of the Indian Penal Code, 1860 has a general marital rape exemption.

The recommendation of Justice Verma Committee regarding deleting exception of marital rape is
not included in Criminal Law Amendment Bill, 2013. The word rape has been replaced with
sexual assault in Section 37539. Rashida Manjoo, the UN Special Rapporteur on violence against
women said that Justice Verma committee’s recommendation and subsequent legislation was a
“golden moment for India” but recommendations on marital rape, age of consent for sex, etc.
were not adopted in the legislation40. The government is hesitant to criminalize marital rape
because it would require them to change laws based on religious practices, including the Hindu
Marriage Act 1955, which says a wife is duty-bound to have sex with her husband 41. The
36
(1987) 2 NZLR 272 (CA)
37
(1996) 1 SCC 490
38
Tandon, N. & Oberoi, N, “Marital Rape- A Question of Redefinition”, 24 ( Lawyers Collective, March 2000)
39
http://articles.timesofindia.indiatimes.com/2013-03-02/india/37389697_1_live-in-relationshipssexual-offence-
sexual-consent [ last visited on 31.10.2016]
40
http://www.hindustantimes.com/India-news/NewDelhi/Anti-rape-law-does-not-fully-reflectJustice-Verma-
committee-s-recommendation/Article1-1053389.aspx [ last visited on 1.11.2016].
41
http://blogs.wsj.com/indiarealtime/2013/03/26/why-india-allows-men-to-rape-theirwives/)[ last visited on 1.11.16]

15
parliamentary panel examining the Criminal Law (Amendment) Bill, 2012, said that "In India,
for ages, the family system has evolved ... Family is able to resolve the (marital) problems and
there is also a provision under the law for cruelty against women, It was, therefore, felt that if
marital rape is brought under the law, the entire family system will be under great stress and the
committee may perhaps be doing more injustice".

Another Section 376A was added which basically states that forced sexual intercourse by a
husband with his wife who has been living separately by virtue of a decree of law or custom, is
liable to imprisonment which may extend to two years and also may be made to pay a fine

Rape of a woman who is under sixteen years of age:

As per Section 376 (2) (i) of Indian Penal Code, whoever commits rape on a woman when she is
under twelve years of age shall be punished with rigorous imprisonment for a term which shall
not be less than ten years but which may be for life and shall also be liable to fine: Provided that
the Court may, for adequate and special reasons to be mentioned in the judgment, impose a
sentence of imprisonment of either description for a term of less than ten years.

The provision is based on the presumption that a girl below 16 years is legally not in the position
to give her consent for sexual intercourse. Consensual intercourse, therefore, amounts to
(statutory rape). Her consent in a no way can absolve the accused, hence completely irrelevant42.

Unfortunately other than the increased minimum punishment from 7 years to 10 years, no other
special concession is given to child rape given the increased trauma for the girl. Since even the
minimum punishment canbe reduced by the judges, much needs to be done in this area.

Rape of a woman, knowing her to be pregnant

As per Section 376 (2) (h) of Indian Penal Code, whoever commits rape on a woman knowing
her to be pregnant shall be punished with rigorous imprisonment for a term which shall not be
less than ten years but which may be for life and shall also be liable to fine: Provided that the
Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence
of imprisonment of either description for a term of less than ten years. 

42
Dilip v State of Madhya Pradesh (2013) 6 SCALE 264

16
If the victim states in court that she did not consent, then the court shall presume that she did not
consent and theburden of proving consent shall shift to the accused.

Gang Rape

As per Section 376 D of the Indian Penal Code 1860, “Where a woman is raped by one or more
persons constituting a group or acting in furtherance of a common intention, each of those
persons shall be deemed to have committed the offence of rape and shall be punished with
rigorous imprisonment for a term which shall not be less than twenty years, but which may
extend to life which shall mean imprisonment for the remainder of that person’s natural life, and
with fine”;Provided that such fine shall be just and reasonable to meet the medical expenses and
rehabilitation of the victim;Provided further that any fine imposed under this section shall be
paid to the victim.

Section 376 D, which derives its source from the pre amended Section 376 (2) (g) read with
explanation 1 thereto, articulates the offence of gang rape in a better way.

Thus even if five men force a women into having sexual intercourse with only one of them, the
remaining four willalso be considered to have committed rape under this law. The Punishment
for such act shall be rigorous imprisonment for a term which shall not be less than ten years but
which may be for life and shall alsobe liable to fine; the court may, for adequate and special
reasons to be mentioned in the judgment, impose asentence of imprisonment of either description
for a term of less than ten years.

If the victim states in court that she did not consent, then the court shall presume that she did not
consent and theburden of proving consent shall shift to the accused.The recent 2013 amendment
provides that the compensation payable by the state government to the victim shall be in addition
to the payment of fine which would be paid to the victim by the accused in case of acid attack or
gang rape.

In the case of Ashok Kumar v. State of Haryana 43, Court observed that in order to establish an
offence under Section 376(2)(g) IPC, read with Explanation I thereto, the prosecution must
adduce evidence to indicate that more than one accused had acted in concert and in such an

43
(2003) 2 SCC 143

17
event, if rape had been committed by even one, all the accused will be guilty irrespective of the
fact that she had been raped by one or more of them and it is not necessary for the prosecution to
adduce evidence of a completed act of rape by each one of the accused.

In the case ofPardeep Kumar vs Union Administration44 it was held that Section 376 embodies a
principle of joint liability and the essence of that liability is the existence of common intention;
that common intention presupposes prior concert which may be determined from the conduct of
offenders revealed during the course of action and it could arise and be formed suddenly, but,
there must be meeting of minds. It is not enough to have the same intention independently of
each of the offenders. In such cases, there must be criminal sharing marking out a certain
measure of jointness in the commission of offence."

6.1. Rape causing death or resulting in persistent vegetative state of victim

Section 376 A is inserted in the IPC by Criminal Law (Amendment) Act 2013, provides severe
punishment for the act of inflicting injuries on women while raping her that results in her death
or causes persistent vegetative state. As per the provision, whoever, commits an offence
punishable under sub-section (1) or subsection (2) of section 376 and in the course of such
commission inflicts an injury which causes the death of the woman or causes the woman to be in
a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall
not be less than twenty years, but which may extend to imprisonment for life, which shall mean
imprisonment for the remainder of that person's natural life, or with death. In this sense, Section
376 A constitutes one of the aggravated forms of the rape.

FUNDAMENTALLY FLAWED UNDERSTANDING OF RAPE IN

HATHRAS CASE.
The affidavit submitted by the Uttar Pradesh government to the Supreme Court in the matter
of the Hathras rape-cum-murder case suffers from factual inaccuracies and distortions, legal
falsehoods and the lack of logic.

44
(2006) 10 SCC 608

18
Demanding a Central Bureau of Investigation inquiry is surely the government’s right. But its
attempt to sell a narrative to the Supreme Court based on legal infirmities and preposterous
claims is a crude attempt to cover up a sequence of events so horrific that  the Allahabad high
court felt compelled to take suo motu cognisance of them..
The UP government’s affidavit has harped on the sexual assault forensic examination report,
which, they claim, does not support what I would call their notions of rape.
According to the definition of rape under Section 375 of the Indian Penal Code, as amended
by the Criminal Law Amendment Act, 2013, penetration of the vagina by the penis in the
conventional sense of sexual intercourse is not at all necessary to constitute the offence of
rape. Now, insertion, to any extent, of any object or a part of the body, such as finger, hand or
mouth, into the vagina, urethra or anus of a woman also constitutes rape. “To any extent” is
the critical part. It means that the slightest contact with the concerned part would also make
for rape.
Even before this amendment, the Supreme Court had held in the case of Radhakrishna
Nagesh vs State of A.P.  that penetration itself proved the offence of rape, but the contrary was
not true, i.e., even if there was no penetration, it did not necessarily mean that there was no
rape.
Secondly, the law is very clear that to constitute rape, the presence of semen or sperm in the
vaginal swab/smear is not necessary.
In State of U.P vs Babul Nath, the Supreme Court had held that the presence of semen,
rupture of hymen and injury to the genitals was not necessary to constitute rape. In  State of
Maharasthra v. Chandraprakash Kewalchand Jain, the Supreme Court ruled, “Spermatozoa
can be found if the woman is examined within 12 hours after intercourse, thereafter they may
be found between 48 and 72 hours but in dead form. If the prosecutrix [i.e. victim] washes
herself by then, the spermatozoa may not be found.”
In this case, there was a delay of as many as eight days in the sexual assault forensic
examination. It can therefore be alleged that she was washed/douched without her knowledge
or under sedation, etc. It can also be alleged that the so-called ‘old healed tears’ in the hymen
resulted due to this delay. In any case, an insistence on looking for evidence of full penile
penetration and semen discharge fails to appreciate that the human vagina is a highly elastic
body that allows the passage of a neonate typically weighing 3.5 kg also without suffering any

19
damage. It shall therefore not be left with a gaping hole because of insertion of a human penis
into it.
The UP affidavit is also guilty of misrepresenting one of the conclusions of the JNMCH
report. “There are no signs suggestive of vaginal/anal intercourse,’ the hospital says, using the
term intercourse (which involves ejaculation, for which, after eight days, there clearly could
not have been signs) rather than penetration (for which there would typically be no signs
regardless).
The one word the JNMCH does not use is rape. Yet the UP affidavit misleads the court by
stating, on oath: “The hospital has … specifically stated in its report  that there is no sign
suggestive of rape. True copy of the Final Opinion on Rape given by JN Hospital,   AMU,
Aligarh dated 3.10.2020 is annexed…” (emphasis added).
Settled legal position regarding value of victim’s statement
In a catena of judgments including State of Uttar Pradesh vs. Chhotey Lal , Vijay @ Chinee
vs State of M.P. ,  Bharwada Bhoginbhai Hirjibhai vs State of Gujarat , and The State of
Punjab vs Gurmit Singh & Ors ,  the Supreme Court has held that in prosecutions of rape, the
law does not require medical corroboration. Seeking corroboration amounts to adding insult to
injury. In State of Maharasthra v. Chandraprakash Kewalchand Jain , the Supreme Court
ruled that if the totality of the circumstances appearing on the record of the case disclosed that
the prosecutrix did not have a strong motive to falsely involve the person charged, the court
should ordinarily have no hesitation in accepting her evidence.
In Ranjit Hazarika vs State of Assam , the Supreme Court held that medical evidence based
on “no reasons” like the absence of rupture of the hymen and injuries on the private parts
cannot throw out the otherwise cogent and trustworthy evidence of the victim.
Citing the above judgments, in State of Karnataka vs S Raju , the Karnataka high court ruled
that medical corroboration was not necessary in cases of sexual assault.
CONCLUSION
Strict laws are not enough higher conviction rates will make india safer for women

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