The term ‘Rape’ has been derived from the Latin word ‘rapio’ which means ‘to seize’. Thus, rape literally means a forcible seizure and that is the essentials characteristic feature of the offence. Under Indian Penal Code, it has been placed in the Chapter XVI which is related to the ‘Offences against Human Body’ starting from S. 299 to S. 377. The definition of Rape is provided in Section 375 and the punishment for same is provided u/s 376 IPC whereas S. 377 IPC talks about the Unnatural Sexual Intercourse and the sexual intercourse against the order of nature, but that has also been decriminalized by Navtej Singh Johar’s case to certain extent. There are other special circumstances which has been envisaged under sexual offences such as sections 376A, 376B, 376C, 376D, 376E by virtue of various Criminal Amendments which has taken place over past few decades. Even, now we also have a special enactment for the protection of children from sexual offences namely, Protection of Child from Sexual Offences Act, 2012 (POCSO) which is a law made for the protection of children who are below the age of 18 from any sexual abuse, assault or exploitation against them.
What Constitutes Rape under Indian Penal Code?
Section 375 of IPC goes by:
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;
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;
manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or;
applies his mouth to the vagina, anus, urethra of a woman or;
If man makes her to do so with him or any other person any of the abovementioned acts.
Analysis of the Definition of Rape given in IPC
Per definition the word ‘Rape’ u/s 375 IPC, only a man can commit rape on a woman and no one else is said to have been a victim of the offence of Rape under IPC. Only a man can be an offender in this offence and woman be a victim, that is all, nothing less nothing more.
Section 10 provides the definition of Man and Woman for the purpose of IPC
“Man” denotes a male human being of any age;
“Woman” denotes a woman human being of any age.
Since the offence of Rape is solely based on the consent obtained from the woman so, it is pertinent to note that there are seven circumstances under which, if consent was obtained, the same cannot be considered as a valid one and the accused would have to face severe ramifications for his act.
These circumstances are as follows and should not be confused with mens rea of the accused as these relate to the victim not the offender:
Against her will.
Without her consent.
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.
With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
With or without her consent, when she is under eighteen years of age.
When she is unable to communicate consent.
Here, the consent of the woman is to be understood with respect to Section 90 of IPC, so we can say that thirdly, fourthly and fifthly are the inclusive part of secondly of the circumstances mentioned in S. 375, as in order to include or to give wider scope to the prosecution it is to be interpreted that secondly is inclusive of other situations as well wherein the consent has been obtained by means of fraud or force or any misconception of fact. So, these are just the few inclusive circumstances and this list not exhaustive.
Gender Discrimination with Man & Transgenders
So, this definition falls short of any kind of recognition of any sexual penetration which a man could commit on another man or; a woman on other woman or; a transgender on another transgender or; a transgender on any woman or; a woman on a man or; a transgender on a man, though this list is not an exhaustive one, such as there is no scope for the human beings those who have undergone Sex reassignment surgery (SRS), also known as gender reassignment surgery (GRS). So here arises a question to ask that what would be the nature of the offence, if any, which could have been committed in these abovementioned circumstances and also, in other situations as well where the offender is not a male and victim is not a female.
These laws should be gender neutral, as today we are living in a nation where state is widely recognised as a “welfare state”, which means it is working for the welfare of the its citizens and caters the need as well as the rights of each and every individual in the society but by after going through these offences it seems like, the legislators and other people of the country are only available to those issues which are raised by substantial amount of citizens and rest are left behind as they do not have any sexual existence and recognizance. Are we really living in a society where we have to ask for our rights otherwise, they will not be made available to us just because only a small portion of the society is going to take away benefit from those laws?
There arises a question, where do we place a man who is living a life as woman or a woman who pretends herself to be a male in society or transgender persons who personate themselves as either male or female in their lives. What would be the nature of the offence if any sexual act is committed on person on these persons? This is a question which every law aspirant should ponder upon as our so called Indian well cultured society is evolving so fast and we do have to provide right and equal protection to these people also, as they are also an indispensable part of this society.
Discrimination between Woman & Wife in Rape (Marital Rape)
“A wife ceases to be a woman under section S. 375, but still continues to be a woman”
Exception 2 to S. 375 is:
“Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
But this stand impliedly amended by virtue of the judgement of Independent Thought v. UOI (2018), which has directed that this is not in congruence with the POCSO Act, 2012 and various other laws and is creating a situation of chaos with respect to the interpretation of many cases of child marriage under Hindu Marriage Act and since we have now enacted a special statute so as to provide justice to the victims of sexual offences those who are below the age of 18. Thus, age of 15 is now to be considered as 18 in case of Marital Rape.
This being said the definition of marital rape under IPC distinguishes a woman and a wife, a wife ceases to be woman per 375 IPC when it comes to a sexual intercourse or act committed by her husband on person on his wife despite her resistance, willingness and consent. Under S. 375, a woman who is a wife, and above the age of 18 and validly married to a man, is not a subject matter of Rape. Not only this but such a woman also, does not have a right to prosecute her husband u/s 377 IPC, as consensual sexual intercourse or act done by any person against the order of nature has now been decriminalised by Navtej Singh Johar’s Case.
Decriminalization of S. 377 and Gender Discrimination in Sexual Offences
After the Hon’ble Supreme Court’s verdict on famous Navtej Singh Johar case, the consensual sexual activity between the LGBT (Lesbian, Gay, Bisexual and Transgenders) has been decriminalized under S. 377 of IPC, but still there exists some arbitrariness and inequality in this as this section doesn’t recognize the wives those who are the victims of the unnatural sexual acts committed upon them by their husbands. Also, it doesn’t provide any remedy to transgenders, who are subjected to forcible sexual acts.
There is inconsistency between the wording of S. 375 and S. 377 of IPC, as in S. 375, the wife can have a remedy against her husband who is performing sexual activities which are against the order of nature and falls under the category of S. 377, but since it is also, a sexual act between husband and wife so as per Indian context we presume that there is consent of the wife. It creates ambiguity as to whether a penetration other than to vagina by a husband with his wife constitutes an offence of rape or unnatural sexual offence? Still both these remedies are not available to a wife.
Now coming on to LGBT community, their consensual sexual activities are decriminalized but what about a forcible sexual activity on these people without their consent, where will these people get justice under present Indian Criminal laws, because to constitute Rape, our legislators have not recognized them as victims or even as offenders.
Recommendations of Justice J.S. Verma (Rtd.) Committee
After Nirbhaya case, on December 23, 2012 a three-member Committee headed by Justice J.S. Verma, was constituted to recommend amendments to Criminal Law so as to provide for quicker trial and enhanced punishment for criminals accused of committing sexual assault against women. It made recommendations on laws related to rape, sexual harassment, trafficking, child sexual abuse, medical examinations of victims, police, electoral and educational reforms.
Inter alia, the major recommendation of this committee was that the words ‘man’ and ‘woman’ which are there in definition of Rape in S. 375 should be replaced with word “Person” so as to include every gender within the ambit of the Rape. If this would be the case, then all the genders might have got recognizance as offenders and as victims within the definition of the Rape. This recommendation has not been given any effect ever since then till today.
Today we talk about gender equality but here we are outrightly claiming that only woman can be sexually harassed. The Hon’ble Supreme Court has held in State of Punjab v. Major Singh, that “Modesty is an attribute associated to female which she owns to her sex”, I couldn’t agree more with the Hon’ble Supreme Court but what about other sex and gender, do they do not have any modesty owing to their sex? Seems like we all are living in a patriarchal society where we are unconsciously giving more importance to the females under sexual offences but along with this we are also, neglecting other genders and need to protect them from sexual abuses and offences.
Another point which I would like to add is that people say you have to ask for your rights, but are we living in a society where we really do have to ask the state to provide us with these or those particular rights. I think if this would be the case then, the whole idea of ‘Welfare State’ and ‘Equality before Law’ and ‘Equal protection of Law’ would become infructuous.
Ratan Lal Dhiraj Lal’s The Indian Penal Code, 35th Edition.
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1
Universal’s Bare Act; The Indian Penal Code, 1860
By Nikhil Sharma
1st Year Law Student
Campus Law Centre
University of Delhi