Section 375- Rape

The fourth most common crime against women in India is rape. As per the 2013 annual
report of the National Crimes Records Bureau (NCRB), in 2012 over 24, 923 cases of
rape were reported across India, out of which, 98% of the cases had someone known to
the victim as accused.
As a large number of cases go unreported in India, it has been characterized as one of
the countries with the lowest per capita rates of rape being reported. However, in recent
years, the willingness to report rape cases has increased as several incidents of rape
has received extensive media attention and has stimulated public protest which
ultimately led to reforming the rape laws by the Government of India.

What amounts to rape under section 375?

Rape under section 375 of the Indian Penal Code includes all or any of the following
acts by a man against a woman:

 Penetration of a man’s sexual organ (penis) into a woman’s mouth, vagina,

urethra or anus or making her do so with him or someone else; or
 Inserting any object, except the penis, into a woman’s vagina, urethra or anus or
making her do so with himself or someone else; or
 Manipulating any body part of the woman to cause penetration into her vagina,
urethra, anus or any other body part or making her do so with himself or
someone else; or
 Applying his mouth to a woman’s vagina, urethra or anus or making her do so
with himself or someone else.
The abovementioned acts must take place under the following circumstances to
constitute rape:

 Against her will;

 Without her consent;
 With her consent, if such consent is obtained by causing her fear of death or hurt
for herself or for someone she knows;
 With her consent, if she believes the man she is engaging with sexually is her
husband;
 With her consent, where due to unsoundness of mind or intoxication, the woman
is not able to fully understand the nature and consequences of the act she
consents to;
 With or without the consent of a woman who is below 18 years of age;
 When the woman is unable to communicate consent.

Consent as mentioned under Section 375

Consent is defined as clear, voluntary communication that the woman gives for a certain
sexual act. Lack of physical injuries from the incident does not imply that consent was
involved in the incident. Medical procedures or interventions do not constitute as rape in
the absence of consent.

However, marital rape, i.e. rape by one spouse of another is as an exception to giving
consent as marital rape is not a crime under the Indian Penal Code, as long as the
woman is above 15 years of age. In October 2017, the Supreme Court stated that the
act of sexual intercourse by a husband with his wife who is under the age of majority (18
years) would also be treated as rape. While reading down the exception the apex court
also changed the age for consent from 15 to 18 years.
Exception to section 375

Sexual intercourse or sexual acts by a man with his own wife, the wife not being under
sixteen years of age, is not sexual assault. Since child marriage in India is not yet void
and is only voidable, such a check was necessary to restrain men from taking
advantage of their marital rights prematurely. No man is guilty of rape on his own wife
under the Indian Penal Code when she is over 15 years of age on account of the
matrimonial consent that she has given.

In a case where a girl below the age of 15 was sent by her father to accompany the
relatives of his elder daughter’s husband to look after her elder sister for some time,
was forcibly ‘married’ to the appellant and had sexual intercourse with her, the accused
was held liable for rape under section 376.

However, under section 376 B of IPC sexual intercourse with one’s own wife without her
consent under a decree of judicial separation is punishable by 2 to 7 years
imprisonment.

Amendment to section 375

The Criminal Law (Amendment) Act, 2013 also known as the Nirbhaya Act is an Indian
legislation which was passed by the Lok Sabha on 19th March 2013 and the Rajya
Sabha on 21st March 2013 to amend the Indian Penal Code, Indian Evidence Act, and
Code of Criminal Procedure in relation with laws related to sexual offences. The Bill
received the assent from the President on 2nd April 2013 and came into force from 3rd
April 2013. The Bill was brought into force by the President of India, Pranab Mukherjee
in light of the protests in the 2012 Nirbhaya rape case.

Although a lot of provisions were added and amended through the Amendment act,
however, the most important change that has been made is the change in the definition
of rape under IPC. Initially, the Amendment Act sought to change the word rape to
sexual assault but the word ‘rape’ has been retained in Section 375 of the Act and it has
been extended to include acts in addition to vaginal penetration. The section now
includes the acts like penetration of penis into vagina, urethra, anus or mouth; or any
object or any part of body to any extent, into the vagina, urethra or anus of another
woman or making another person do so; to apply mouth or touching private parts
constitutes the offence of sexual assault.

The section also clarifies that penetration means "penetration to any extent", and lack of
physical resistance is immaterial for constituting an offence of sexual assault. Except in
certain aggravated situations, the punishment will be imprisonment not less than seven
years but which may extend to imprisonment for life, and shall also be liable to fine. In
aggravated situations, punishment will be rigorous imprisonment for a term which shall
not be less than ten years but which may extend to imprisonment for life, and shall also
be liable to fine.