RAPE: Section 375

the crime
against women and their exploitation has increased in spite number of laws to
protect and
safeguard their interest
the crime
against women and their exploitation has increased in spite number of laws to
protect and
safeguard their interest
the crime
against women and their exploitation has increased in spite number of laws to
protect and
safeguard their interest
the crime
against women and their exploitation has increased in spite number of laws to
protect and
safeguard their interest
the crime
against women and their exploitation has increased in spite number of laws to
protect and
safeguard their interest.
1.Rape is violative of the victim’s fundamental right under Article 21 of the Indian
Constitution
2.Rape is a crime against a society that infringes on the victim’s human rights.
3.The Parliament extensively amended the law of rape in 2013 so as to make the law
more realistic.

Old provision: Section 375. Rape.

A man is said to commit” rape” who, except in the case hereinafter excepted, has
sexual intercourse with a woman under circumstances falling under any of the six
following descriptions: -
First- Against her will.

Secondly - Without her consent.

Thirdly - With her consent, when her consent has been obtained by putting her or
any person in whom she is interested in fear of death or of hurt.
Fourthly- With her consent, when the man knows that he is not her husband, and
that her consent is given because she believes herself to be lawfully married to that
person.

Fifthly- With her consent, when, at the time of giving such consent, by reason of
unsoundness of mind or intoxication or administration of a substance, she is unable
to understand the nature and consequences of that to which she gives consent.

Sixthly- With or without her consent, when she is under sixteen years of age.

Explanation- Penetration is sufficient to constitute the sexual intercourse necessary

to the offence of rape.

Exception- Sexual intercourse by a man with his own wife, the wife not being under
fifteen years of age, is not rape.”

Provision after amendment:

A man is said to commit “rape” if he-

penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a
woman or makes her to do so with him or any other person OR

inserts, to any extent, any object or a part of the body, not being the penis, into the
vagina, the urethra or anus of a woman or makes her to do so with him or any other
person OR

manipulates any part of the body of a woman so as to cause penetration into the
vagina, urethra, anus or any ~ of body of such woman or makes her to do so with him
or any other person OR

applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with
him or any other person

and does such act under following circumstances:

First-Against her will.

Secondly-Without her consent.

Thirdly-With her consent, when her consent has been obtained by putting her or any
person in whom she is interested, in fear of death or of hurt.

Fourthly- With her consent, when the man knows that he is not her husband, and
that her consent is given because she believes herself to be lawfully married to that
person.

Fifthly-With her consent when, at the time of giving such consent, by reason of
unsoundness of mind or intoxication or the administration of substance, she is
unable to understand the nature and consequences of that to which she gives
consent.

Sixthly-With or without her consent, when she is under eighteen years of age.

Seventhly-When she is unable to communicate consent.

Exception1- Medical treatment or intervention will not amount to rape

Exception 2- Sexual intercourse or sexual acts by a man with his own wife, the wife
not being under fifteen years of age, is not rape.’

Ingredients of offence of rape:

A man is guilty of rape if he commits sexual intercourse with a woman either against
her will or without her consent as enumerated under clauses firstly to seventhly of
Section 375 IPC.

-Against her will

-Without her consent
-Consent is obtained by force or putting a person of her interest under fear of death
-Consent obtained by a misconception (misrepresenting to be her husband)
-Consent was obtained when the person was unsound, intoxicated, or under undue
influence
-Women under the age of eighteen with or without her consent
-A woman who is unable to communicate her consent.

1. Against her will-

Will is the capacity to choose what you want.

There is a fine distinction between an act done ‘against the will’ and ‘an act done
without consent.’ Every act done ‘against the will’ is obviously ‘without the consent.’
But every act ‘without the consent’ is not ‘against the will.’

the Supreme Court has explained that the expression ‘against her will’ would
ordinarily mean that the intercourse was done by a man with a woman despite her
resistance and opposition.

2.Without her consent:

The essence of rape is the absence of consent.

Consent must be given freely and it must not be obtained by fraud or by mistake or
under a misconception of fact.

Consent of the woman has to be obtained prior to the act.

Consent obtained by misrepresentation, fraud or under mistake is no consent.

3. Consent obtained by putting the woman under fear of death or hurt is no consent:

When the consent to sexual intercourse has been obtained by putting the woman
under fear of death or hurt towards her or any person she is interested in, is rape.

The fear of death or hurt could be towards her children, husband or parents also.

4. Consent obtained under a misconception that the person is the husband of the
woman is not a valid consent:

Consent given by a woman to a person for intercourse believing the person to be her
husband whereas in fact, he is not her husband, is no consent in law.

In such a situation the person knows that he is deceiving the woman and pretends to
be her husband.
5. Consent obtained when the woman is intoxicated is of an unsound mind

The object of this clause is to protect and safeguard the interest of the woman who
gives consent for sexual intercourse without knowing consequences of the act.

She gives consent due to the reason of unsoundness of mind or under the influence
of any substance.

In such cases, it is presumed that the consent of the woman is not free and voluntary

6. Consent of a girl under 18 not valid in law:

Sexual intercourse with a woman with or without her consent when she is below 18
years of age amounts to rape.

A woman under 18 is considered incapable of giving consent for sexual intercourse.

The age of consent was raised from 16 to 18 by the Amendment Act of 2013.

Exception: No man can be guilty of rape on his own wife when she is not under 16
years of age

7. Woman is unable to communicate her consent:

If a man has sexual intercourse with a woman who is not able to communicate her
consent would amount to the offence of rape.

Thus, a man is guilty of rape if he commits sexual intercourse with a woman either
against her will or without her consent

PUNISHMENT FOR RAPE: RIGOROUS IMPRISONMENT FOR 10 YEARS WHICH MAY

EXTEND TO LIFE IMPRISONMENT, ALONG WITH FINE

In State of Punjab v. Gurmit Singh

A young girl below the age of 16 years was abducted from her school by the three
accused in a car
She was threatened with death if she raised an alarm.
Despite her refusal, she was made to drink liquor.
Then she was raped by each one of them in turn under the threat of being killed if
she persisted in raising an alarm.
Due to the threat, she kept quiet. After repeatedly committing sexual assault on
her, they left her the next morning near the place from where she had been
abducted.
the Apex Court held that the sexual intercourse was against her will for which the
accused are liable for committing rape under Section 376, IPC.