ACKNOWLEDGEMENT

I, owe a great appreciation to who has given

me a chance to make an assignment analyzing the
topic “RAPE”.
I would like to express my gratitude to all those who
helped me in this topic.

I further extend my thanks to Library Staff who have

helped me in getting all those materials necessary for
the assigned Topic of the Assignment.
 1

Table of Content

S. TOPIC PAGE
NO. NO.
1 Introduction 2
2 Section 375 of IPC 1860 2-5
3 Consent 6-8
4 Will 8-10
5 Essential of Rape 10
6 Case Law of Essential of Rape 10-12
7 Exceptions to Section 375 13
8 Landmark Judgement under Section 375 14-16
9 Section 376 of IPC 1860 17
10 Changes made in Section 376 post 2012 18-19
11 Exploring rape cases through landmark 20-23
decisions
12 Assistance to rape victims : Supreme Court 23-24
guidelines
13 Loopholes to Section 375 of the Indian 24-25
Penal Code, 1860
14 Conclusion 25
15 References 26
 2

Introduction
Rape is violative of the victim’s fundamental right under Article 21 of the Indian
Constitution. It is the most morally and physically abhorrent crime in society
since it violates the victim’s body, mind, and privacy. A rapist ruins and defiles
the soul of a vulnerable female, whereas a murderer destroys the victim’s
physical form. Rape results in uprooting the entire life of the individual who is
subjected to it. A rape victim cannot be considered an accomplice in any way.
Because rape leaves a lifelong mark on the victim’s life, a rape victim is held in
more regard than an injured witness. Rape is a crime against a society that
infringes on the victim’s human rights. Rape, as the most despised crime, is a
devastating blow to a woman’s greatest honor, and offends both her esteem
and dignity. It causes the victim psychological and physical trauma, leaving
indelible traces on her. While performing any act, the two essential ingredients
are consent and will. Different courts have interpreted the ingredients
differently. The plain reading of consent mentions that act should be voluntary
and willing. Many authors and researchers still believe that willingness and
consent are the same. This article explains the clear differentiation between will
and consent in consideration with Section 375 of the Indian Penal Code through
various judgments of the courts. While considering Section 375 of the Indian
Penal Code both the clauses need to be satisfied to avoid liability from the
offence of rape.

Section 375 of the Indian Penal Code,

1860
Chapter XVI of the Indian Penal Code, 1860 has been subjected to changes from
the heading ‘Of rape’ to that of ‘Sexual Offences’ by Act 43 of 1983. The
definition of rape has changed significantly to include non-penile penetration,
although it remains gender-specific when committed against a female.
Previously, in Sakshi v. Union of India (2004)1, a public interest litigation seeking
a ruling that non-penile penetration should be classified as rape was denied by
the Supreme Court, but the Court’s encouragement to change the definition
prepared the path for the change of law. The new definition, which raises the
age of consent to 18, is crucial since it now considers any type of penetration
under the Section with a female under the age of 18 to be rape. If the woman
was still under the age of 18 and over the age of 15, it would not have been
considered rape in a married context as long as the agreement was given under
Exception 2 of the provision. However, the Supreme Court ruled in Independent
Thoughts v. Union of India (2017) 2that the provision is unlawful in so far as it

1
Sakshi v. Union of India (2004)
2
Independent Thoughts v. Union of India (2017)
 3

affects girls aged 15 to 18. Exception 2 must now be read as, ‘sexual
intercourse or sexual acts by a man with his own wife who is not under the age
of eighteen is not rape.’ A brief reading of Section 375 of the Indian Penal Code,
1860 reveals that it is a gender-specific provision for the protection of women,
as rape can only be committed by a man. The Section is split into two parts.
Clauses (a) to (d) in the first part of the Section merely state what acts
undertaken by a man with a woman would constitute rape if they were
committed in any of the seven situations specified in the second part of the
provision. While Section 375 allows for consenting penetrative actions (which
includes oral and anal intercourse), Section 377 made the same acts of
penetration illegal regardless of consent. This results in a legal schism. Section
377’s prohibition of a consensual sexual relationship is based on no recognised
or logical grounds. Consensual sexual expression and intimacy between adults
in privacy cannot be considered “carnal intercourse against the natural order.” It
is necessary to note that the provision has now been repealed after the
Supreme Court made a landmark decision in Navtej Singh Johar v. Union of
Inida (2018)3.

4
Section 375 and its clauses
Under Section 375, a man is said to commit rape if he;

1. Penetrates his penis into a woman’s vagina, mouth, urethra, or anus to

any amount, or forces her to do so with him or anybody else; or
2. Inserts any object or portion of the body, other than the penis, into the
vagina, urethra, anus, or any other part of her body, or forces her to do
so with him or another person; or (commonly known as digital rape)
3. Manipulates any part of a woman’s body to produce penetration into
the vagina, urethra, anus, or any other part of her body, or forces her
to do so with him or anybody else; or
4. Applying his tongue to a woman’s vagina, anus, or urethra, or forcing
her to do so with him or another person, or
5. Any of the seven clauses laid down under Section 375 of the Indian
Penal Code, 1860. The provision embraced with seven clauses that
majorly lays down circumstances that if takes place, can be quoted to
be amounting to the offence of rape. The same has been discussed
hereunder.

3
Navtej Singh Johar v. Union of India (2018)
4
Section 375 in The Indian Penal Code, 1860
 4

First clause : against her will

If a male has sexual intercourse with a woman against her will, it is rape
according to the first clause, unless it falls under one of the exceptions listed in
the section. In Deelip Singh v. State of Bihar (2005)5, according to the
prosecutrix, the initial illegal conduct was carried out despite her opposition, but
she later became a consenting participant as a result of frequent promises of
marriage. She revealed in the FIR that she succumbed to him even before the
first act because of the marriage promises. The Apex Court decided that her
version was untrustworthy and that the charge against the accused was
unfounded.

Second clause : without consent

If a male engages in sexual activity with a woman without her consent, it
constitutes rape under the second clause if it does not fall within the exceptions
set out in the Section. It should be noted that if the girl claims she did not
consent to the rape while in custody, the court will assume she did not consent,
as has been held in the case of Sohan Singh v. State of Rajasthan (1998)6.

Third and fourth clauses : passive non-resistance or

consent obtained by fraud
As per the third clause, when a woman’s assent is secured by putting her or
anybody she cares about in fear of death or harm, although the act is done with
her permission, the same amounts to rape. If a girl does not object to
intercourse because she is misled, this does not constitute consent on her part.
It was held that a medical man who was sent for professional guidance by a
fourteen-year-old girl had a criminal relationship with her, and she made no
resistance because she believed he was treating her medically, was guilty of
rape. The prosecutrix’s submitting of her body out of dread or anxiety cannot be
considered a consenting sexual act. In light of the case of State of Himachal
Pradesh vs. Mange Ram (2000)7, the Supreme Court stated that the fact of
consent may only be determined after a thorough examination of all relevant
circumstances. Clause 4 concerns a rapist who is aware that he is not his
victim’s spouse, and that her consent is granted because she believes he is
another man to whom she is or believes she is lawfully married. In the case
of Reg vs. R, 3 WLR 767 (HL)8, a wife left the matrimonial house and returned to
live with her parents due to marital issues, advising the husband of her intention
to file for divorce. While the wife was staying with her parents, the husband

5
Deelip Singh v. State of Bihar (2005)
6
Sohan Singh v. State of Rajasthan (1998)
7
State of Himachal Pradesh vs. Mange Ram (2000)
8
Reg vs. R, 3 WLR 767 (HL)
 5

forced his way in and attempted to have sexual relations with her, during which
he assaulted her. His attempted rape and assault causing actual bodily injury
convictions were upheld.

Fifth clause : sexual intercourse with insane or drunken

person
As per the fifth clause of Section 375, the acts done with the victim’s consent
when she is unable to appreciate the nature and consequences of that to which
she consents due to unsoundness of mind or intoxication, or the administration
by the accused directly or through another of any stupefying or unwholesome
substance, will amount to rape. In R v. William Camplin (1849)9, it was held that
rape occurred when a man had carnal knowledge of a girl of imbecile mind and
the jury found that it occurred without her consent, she being unable of giving
consent due to a defect of comprehension. This act was committed when the
perpetrator made a woman very inebriated and then violated her person while
she was unconscious. These instances will now fall under the fifth clause of
Section 375 of the Indian Penal Code, 1860.

Sixth and seventh clause : sexual intercourse with a

minor and when the woman is unable to communicate
consent
As per the sixth clause, if the offensive act is done with or without the consent of
the girl and the girl is under the age of eighteen, it is termed rape. The seventh
clause states that if the offensive act is performed on a woman who was not in a
position to consent at the time of the intercourse, the same will also be
considered to be rape.

Prosecutrix not an accomplice

After the incident, a prosecutrix who claims to have been a victim of rape is not
an accomplice. Because she is on a much higher pedestal than a wounded
witness, there is no rule of law that her evidence cannot be relied upon without
material particulars confirmation. A woman who is the victim of sexual assault is
not a co-conspirator in the crime, but rather a victim of another’s lust, and thus
her evidence does not require the same level of scrutiny as that of a co-
conspirator. Her testimony cannot be accepted unless it is corroborated in
material particulars, according to the Indian Evidence Act of 1872 . She is

9
R v. William Camplin (1849)
 6

unquestionably a competent witness under Section 118, and her testimony must
be given the same weight as that of a victim of physical violence.

Consent
Consent refers to an activity done by a person under a free state of mind.
According to Merriam Webster, consent refers to an act committed by a person
by giving assent and approval. According to Section 375 consent can be referred
to as an unequivocal voluntary agreement when a woman by communication,
verbal, or non-verbal, shows her willingness to commit a specific act. The core
concept under consent is choice, and not will. To interpret consent, it is
necessary to prove:

 The person can give consent; and

 The person, with his free choice, has accepted the act.
For example, if A has accepted to perform the construction of B’s house under
his free choice, it would amount to valid consent. Section 90 specifies two
justifications that are analogous to compulsion and mistake of fact. The factors
listed in the first part of Section 90 are from the victim’s perspective, whereas
the second half of Section 90 enacts the same provision from the accused’s
perspective. It is assumed that the accused knows or has cause to think that the
victim’s permission was granted out of fear of injury or misunderstanding. As a
result, the second part of the provision emphasizes the person who gets the
tainted consent’s awareness or reasonable belief. The requirements of both
components should be fulfilled as a whole. In other words, the court must
determine whether the consent was given under duress or misinformation, and
the court must also be satisfied that the person performing the act, i.e., the
alleged offender, is aware of the fact or has reason to believe that the consent
would not have been given but for the fear or misinformation. This is the Section
90 scheme, which uses negative wording.

Capacity to consent
The person is said to be capable of giving a valid consent when:

1. The person should be of a sound mind: The burden of proof would be

on the person claiming this right.
For example, A gives consent to B to sell his property to him when he was in an
unsound state of mind, and later retracts from the agreement, then it cannot be
enforced because the consent was obtained when he was not in a sound mind.

1. The person should have attained the age of majority. In law , it is

believed that minors are incapable of giving consent.
 7

For example, if A and B are in a sexual relationship where B is a minor girl,

though the sexual activity is consensual, it would still amount to the offence of
rape.

Types of consent
Section 90 of the Indian Penal Code mentions the meaning of free consent.
Consent is not said to be free when a person is put under the fear of injury, or
misconception of facts. There are two types of consent:

1. Implied Consent: It is a type of consent given by the person in the

form of actions. Consent can be given through gestures or various non-
verbal communications. According to the legal dictionary, implied
consent refers to the consent that is inferred from signs, actions, or
facts, or by the inaction or silence. For Example,. A owns a firecracker
shop. When B enters his shop he gives an implied consent that he
wants to purchase products from his shop.
2. Express Consent: It is a type of consent that may be given by a
person in an oral or written form. If it is express consent, it becomes
easier to prove in the court of law. For example, A asks B to Purchase a
property for him and if he agrees and says yes, then it is expressed
consent.

Consent on the promise of marriage

Consent might be expressed or implied, compelled or misled, freely given or
obtained via deception. Consent is a rational act followed by contemplation, with
the intellect weighing the good and evil on each side like a balance. There is a
substantial difference between rape and consensual sex, and the court must
carefully consider whether the accused had a genuine desire to marry the
victim, or had made a false promise to that effect solely to fulfil his libido, as the
latter falls under the category of cheating or deception. There is a difference
between just breaking a commitment and not keeping a false promise. As a
result, the court must determine whether the accused made a false promise of
marriage at an early stage, and whether the consent was obtained after fully
comprehending the nature and implications of sexual indulgence. There may be
a case where the prosecutrix agrees to have sexual intercourse with the
accused because of her love and passion for him, rather than solely because of
the accused’s misrepresentation, or where an accused was unable to marry her
despite having every intention to do so due to circumstances he could not have
foreseen or were beyond his control. These situations must be handled
differently. Only if the Court finds that the accused’s aim was malicious and
that he had hidden motives can the accused be found guilty of rape, as has
 8

been the case in Dhruvaram Murlidhar Sonar vs. State of Maharashtra (2019)10.
When a man and woman were living together, sometimes at her home and
sometimes at the man’s, and the evidence indicated that it was not a case of
passive submission in the face of psychological pressure, and there was tacit
consent that was not based on any misconception created in her mind, a
complaint under Section 375 would be unworkable. As has been observed by the
Apex Court in the landmark case of Uday vs. State of Karnataka (2003)11, if the
accused’s promise is not false and was not made with the express goal of
seducing the prosecutrix into engaging in sexual actions, the act(s) would not be
considered rape. Thus, if the prosecutrix submits to the accused’s passion
because she believes the accused is going to marry her, such a false act cannot
be deemed to be consensual in terms of the accused’s offence.

Where consent need not be obtained

According to Section 92 of the Indian Penal Code where it is not possible for the
person to give consent and the other person acts in good faith, there is no need
to wait for the consent of the person. For example, If A is facing epileptics and
bleeding, he is unable to give consent. Then if B, a surgeon, operated without
A’s consent, During the operation A was declared dead, B cannot be held liable
for his action because it was a case of emergency and the patient was unable to
give consent.

Will
The word refers to the reasoning power of the mind to determine whether to do
an act or not. According to Merriam Webster, ‘will’ is defined as a thing that is
done with desire or choice. In other words, an act of will refers to a desire to
participate by a person without being under pressure or under the influence of
any other person. E.g. A instigated B to shoot C to which B willingly agreed and
shot C. In this scenario, there was a clear will of B to shoot C though instigated
by A he had a clear choice to say no.

Act committed against the will

Will is a significant concept to prove the offence of rape. According to Section
375(1), where sexual intercourse is done against the will of the other person,
amounts to the offence of rape. In the State of Uttar Pradesh vs. Chhotey Lal
(2011) 12the Supreme Court explained the concept stating that an act done by a
man against women despite her resistance or opposition.

10
Dhruvaram Murlidhar Sonar vs. State of Maharashtra (2019)
11
Uday vs. State of Karnataka (2003)
12
State of Uttar Pradesh vs. Chhotey Lal (2011)
 9

Law against the will and without consent

Section 375 of the Indian Penal Code includes both the components it is an
act that is committed against the will and an act committed against the consent
of the women. This section mentions the offence of rape. The word rape is
derived from the Latin word “rapio” which means to seize in other words it
refers to the ravishment of women without her consent. Recently in the
year 2013, an amendment was passed in-laws of rape to safeguard the interest
of innocent victims.

Difference between ‘against her will’ and ‘without

her consent’
Although the expressions against her will and without her consent may
occasionally overlap, the two expressions in Clauses one and two of Section 375
have distinct connotations and dimensions. The phrase “against her will” usually
refers to a male having sexual relations with a woman despite her protests and
refusal. On the other hand, an act of reason accompanied by deliberation would
be included in the statement ‘without her consent. It should be emphasised that
the courts have applied the tests for establishing consent set forth in Section 90
of the IPC. As per Section 90, a consent is not such as is intended by any section
of this Code if it is given out of fear of injury or a misunderstanding of facts, and
the person doing the act knows, or has reason to believe, that the consent was
given as a result of such fear or misunderstanding; or if it is given out of
unsoundness of mind or intoxication, and the person doing the act knows, or has
reason to believe, that the consent was given as a result of such fear or
misunderstanding; or if the consent is given by a person who is under twelve
years of age. In Holman vs. Queen (2010)13, it was stated that it must not be
necessary for willingness to constitute consent. If a woman giving the consent is
reluctant, hesitant, and grudging but she consciously permits the same, then
such consent would be considered to be valid. A consent given under protest
and tears would still be consent. For example, if a prostitute gives her consent
for having sexual intercourse not because of her will but because of her
constraint, her consent cannot be turned as invalid. Consent is therefore valid
even if it is against the will. In the State of Uttar Pradesh vs. Clottey
Lala (2011)14, the Apex Court stated that the expression against her will and
without her consent may overlap but they have different connotations and
dimensions, the expression against her will would mean that that act is done by
man despite her resistance and opposition. The other without her consent would
mean an act done with deliberation.

13
Holman vs. Queen (2010)
14
State of Uttar Pradesh vs. Clottey Lala (2011)
 10

Essential of rape
 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;
 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.

Case law of essential of rape

1. Acts done against her will

15
Himachal Pradesh v. Mango Ram (2000)
In this case, Prosecutrix was the eldest daughter Jagia Ram. The accused who
was aged 17 years accompanied the prosecutrix. The accused caught her from
behind and was forced to lie on the cowshed and committed a sexual act. The
Supreme Court held that the girl tried resistance to stop the accused from
committing the act but the accused overpowered her and the act was
committed against the will of the victim and was held liable for the offence of
rape.

2. Act committed against the consent

According to Section 375(2), an act of sexual intercourse committed against the
will of the women amounts to the offence of rape. If the consent is not obtained
freely then the other person can impose criminal liability. In the recent
amendment in 2013 changes were made that if women claim that while having
sexual intercourse there was no consent then the court shall presume the same.

15
Himachal Pradesh v. Mango Ram (2000)
 11

16
Queen vs flattery (1877)
In this case, the girl was in ill health and had gone to the accused’s clinic and
she was advised to undergo a surgical operation to which she agreed while
17
operating the accused had sexual intercourse with the girl. The court held that
consent was not a valid one and was obtained through misconception. Thus
accused liable for the offence of rape.

3. Non-Valid Consent and associated case laws

Consent obtained under misrepresentation, fraud, or mistake: During the time of
having sexual activity with a woman if consent is obtained misrepresentation,
fraud, or mistake such consent won’t be held valid and the accused can be still
held liable for the offence of rape.

Bhupender Singh v. Union Territory of

Chandigarh (2008)17
In this case, the accused had sexual intercourse with the prosecutrix through
which she became pregnant and she had undergone an abortion. They again
had sexual intercourse. The accused promised her that he would marry her
again and she again became pregnant. Later, she got to know that the accused
was already married and had children and in confrontation, the accused failed to
perform his promise. She filed a suit against the accused. The court held that
the accused had sexual intercourse with the victim in a state of fraud and thus
the consent of the victim is not a valid one and the accused was held liable
under Section 375.

4. Consent obtained when the woman is

intoxicated is of an unsound mind
A consent obtained during the state of unsoundness and intoxication cannot be
termed as valid consent.

Tulsidas Kanolkar vs State of Goa (2003)18

16
Queen vs flattery (1877)
17
Bhupender Singh v. Union Territory of Chandigarh (2008)
18
Tulsidas Kanolkar vs State of Goa (2003)
 12

In this case, the girl was not having a proper mental condition to give consent
for sexual intercourse. The accused claimed the defence of valid consent. The
additional session judge holding the accused liable of the offence ordered
rigorous imprisonment and a fine of 10,000. The High Court reduced the
imprisonment to 7 years. The Supreme Court dismissing the appeal there was
only mere submission and no consent.

5. Consent obtained by putting a person of interest

under fear of death is not a valid consent
If an interested person of a woman like children, parents, husband, etc is under
fear of death and in that situation consent of a woman is obtained then it cannot
be termed as valid consent.

19
State of Maharashtra vs Prakash (1992)
In this case, the police officer and a businessman put the husband of the victim
under remand where her consent was obtained to have sexual intercourse. The
court held that consent given by the women is not a valid one where a person of
her interest is put under fear of hurt or death. Therefore they were liable for the
offence. A person not capable of communicating 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. E.g. If A is and B has sexual intercourse
believing that she has conceived for the sexual act. Later A claims that she
didn’t consent to that act then B would be liable for the offence of Rape.

Exceptions to Section 375

Section 375 of the Indian Penal Code, 1860 is furnished with two exception
clauses, while the first one provides that a medical procedure or intervention
shall not constitute rape, the second exception provides that sexual intercourse
or sexual acts by a man with his own wife, the wife not being under eighteen
years of age, is not rape.

Exception 1 : Medical procedure or intervention shall not

constitute rape

19
State of Maharashtra vs Prakash (1992)
 13

A medical procedure or intervention shall not constitute the offence of rape. This
exception clause states that any medical intervention against women cannot be
termed as an offence of rape under the court of law.

Exception 2 : Sexual intercourse or sexual acts by a man

with his own wife, the wife not being under eighteen
years of age, is not rape
By the 1949 Amendment to the Indian Penal Code, 1860, the age limit was
increased from 15 to that of 18 years. There may be times when a legal check is
required to prevent males from taking advantage of their marital rights
prematurely. In such instances, the husband’s abuse will be covered by this
clause. The Supreme Court ruled in Independent Thought vs. Union of
India (2017)20, that sexual intercourse with a girl under the age of 18 is rape,
regardless of whether she is married or not. Exception 2 makes an unnecessary
and artificial distinction between married and unmarried girl child, according to
the Court, and has no rational nexus with any specific goal attempted to be
reached. This artificial distinction is in violation of Article 15(3) of the
Constitution’s spirit and ethos, as well as Article 21 of the Constitution. It also
goes against the idea behind some statutes, such as the girl child’s bodily
integrity and reproductive choice.

Landmark judgments under Section

375
Section 375 is one of the most talked-about sections nowadays due to the
significant increase in the number of rape cases in India. Some of the landmark
cases are as follows:

Rao Harnam vs Union of India (1957)21

In this case, Kalu ram sent her wife aged 19 years to please the accused. The
girl protested against this act of the husband but was later induced to surrender.
The accused ravished her due to which she died immediately. The High Court
20
Independent Thought vs. Union of India (2017)
21
Rao Harnam vs Union of India (1957)
 14

observed that she surrendered her body to the accused under the pressure of
her husband therefore the accused would be liable for the offence. This
judgment is a landmark because it explains the difference between consent and
mere submission the high court while pronouncing the judgment held that

 A mere act of helpless, inevitable compulsion cannot be deemed as

consent.
 If the submission involves fear then the consent is not free. The Mere
act of submission doesn’t involve consent.
 consent is said to have been given by the woman if she freely agrees to
submit herself. It involves conscious and voluntary acceptance of what
is proposed to be done.

Mukesh & Anr. vs. State for NCT of Delhi & Ors.
(Nirbhaya Gang Rape Case) (2017)22
In this case, a young girl was returning home with her male friend after
watching the movie and boarded a bus. Six people were there at the bus
including the driver firstly knocked on the guy with the iron rod then she was
brutally raped by all of them. Within 24 hours, they were arrested. The Supreme
Court while pronouncing the judgment considered it as the rarest of the rare
case and ordered the death penalty to the offenders. This was a landmark
judgment where the court observed it as the rarest of the rare case and ordered
them with the punishment of the death penalty. This case also generated a lot
of public outcries which led to the formation of the JS Verma committee and
various suggestions were suggested and finally an amendment was passed in
the year 2013.

Tukaram and Anr. v. State of Maharashtra (1978)23

In this case, Mathura was an 18-year-old orphan girl who was called to the police
station on an abduction report filed by her brother. Mathura was kept late. She
was forcefully taken to the toilet and was raped by a constable Ganpat and
Molested by Tukaram they had bottled the door from inside. In the sessions
court the accused were acquainted naming it as consensual sex. The decision
was challenged in the Bombay High court which reversed the decision
distinguishing between consent and passive submission and claimed that there
was no consent and was a mere passive submission therefore they are liable. In
the Supreme Court, they were acquainted with their charges and claimed that

22
Mukesh & Anr. vs. State for NCT of Delhi & Ors. (Nirbhaya Gang Rape Case) (2017)
23
Tukaram and Anr. v. State of Maharashtra (1978)
 15

there were no marks and it was a peaceful affair. This judgment of the Supreme
Court was heavily criticized thus after this judgment in an inquiry it was held
that marks in the victim’s body are not important. Recently the case that shook
the whole country is the Nirbhaya rape case four decades ago the case that
shook was the Mathura rape case. This case highlighted the flows existing in the
existing criminal laws. A criminal law amendment was passed to nullify the
effect of the judgment. Legal Changes

 Changes were made in Section 376 of the Indian Penal Code.

 Custodial Rape provision under Section 376(2) was added.
 The Punishment was prescribed to a term not less than 10 years
 Section 228A Indian Penal Code was added not to reveal the identity of
the rape victims.

Vishaka v. State of Rajasthan and Ors. (1997)24

In this case, a social worker named Bhanwari who was contributing her effort in
stopping child marriages was allegedly gang-raped by five men though a
complaint was logged no investigation was initiated. The trial court acquainted
the accused due to a lack of medical evidence. A public Interest Litigation was
filed on the issue of sexual harassment at the workplace. The court decided to
give the judgment on international conventions right to work with human dignity
is granted under Article 14, 19, 21 of the Indian constitution. In this case, certain
guidelines were given by the Supreme Court; it is popularly known as Vishaka
guidelines. This case is a landmark judgment because this case leads to the
formation of guidelines on sexual harassment at the workplace. Before this
case, India didn’t have guidelines for the offence of sexual harassment at the
workplace. These guidelines became legislation in 2013 in the name of sexual
harassment at the workplace Act, 2013. Legal changes:

 Formation of sexual harassment Committee.

 The committee should be headed by a women employee of the NGO.
 The committee Should Guide the victim for further course of action.

State of Maharashtra v. Madhukar

Narayan (1990)25

24
Vishaka v. State of Rajasthan and Ors. (1997)
25
State of Maharashtra v. Madhukar Narayan (1990)
 16

In this case, the accused went to the hutment of the prosecutrix and had
forcible sexual intercourse the victim tried to resist him. In his defense he
claimed that he had gone to the hutment because the lady engaged in the
business of illicit liquor. She also had an extramarital affair. The Bombay High
Court refused to impose a charge on the inspector. The Supreme Court held that
the history of the women should not be taken into consideration and removed
the inspector from his service. This case was a landmark because the court gave
an important guideline that the history of the women should not be taken into
consideration. By the virtue of Article 141 of the Indian Constitution, it is still
binding on the lower courts.

Independent thoughts v. Union of India (2017)26

A writ petition was filed in the Supreme Court under Article 32 challenging the
exception 2 mentioned under Section.375 which claimed non-consensual sex
with wife above the age of 15 doesn’t amount to the offence of rape. The court
observed that there is an artificial distinction made between married and
unmarried girls without any reasonable nexus. Forcible sexual intercourse with
wife leads to mental trauma. Therefore the court finally increased the age from
15 to 18. This was a landmark Judgments it was one of the most significant
steps taken to criminalize marital rape which is an exception under Section 375
and set a limit that non-consensual sexual intercourse with wife below 18 years
would amount to the offence of rape.

Section 376 of the Indian Penal Code,

186027
The 1983 Amendments to the rape laws in India were prompted by the acquittal
of police officers in the infamous Mathura Rape Case and widespread protests
against the judgement. Sections 375 and 376 of the Indian Penal Code, 1860
were considerably altered by the Criminal Law (Amendment) Act, 1983. The
same Act also included numerous new sections to the Penal Code, such as;

 Section 376A: Punishes sexual intercourse with wife without her

consent by a judicially separated husband.

 Section 376B: Punishes sexual intercourse by a public servant with

woman in his custody.

 Section 376C: Punishes sexual intercourse by Superintendent of Jail,

Remand Home, etc., with inmates in such institutions
26
Independent thoughts v. Union of India (2017)
27
Section 376 of the Indian Penal Code, 1860
 17

 Section 376D: Punishes sexual intercourse by any member of the

management or staff of a hospital with any woman in that hospital.

 Section 376E: A repeat rape offender will have to be imprisoned for

the rest of his life or sentenced to death.
These new sections were created in order to prevent sexual abuse of women in
custody, care, and control by a variety of people who, while not committing
rape, were nonetheless regarded morally immoral. For the crime of rape, the
modified Section 376 of the 1860 Code stipulated a minimum sentence of seven
years in jail. A minimum penalty of ten years in prison has been imposed to
combat the vices of custodial rape, rape on pregnant women, rape on girls
under the age of twelve, and gang rape. However, courts in either case could
impose a term less than seven or ten years for extraordinary reasons to be
stated in the judgement. Section 114A of the Indian Evidence Act, 1872 by
raising a presumption as to absence of consent in cases of custodial rape, rape
on pregnant women and gang rape as in clauses (a), (b), (c), (d), (e) and (g) of
sub-section (2) of Section 376, merely on the evidence of the ravished women
had, at least partially, removed the infirmity from the evidence of a victim of
rape that was hitherto unjustly attached to her testimony without taking note of
the fact that in India, a disclosure of this nature was likely to ruin the prospect of
the girl’s rehabilitation in society for all times to come and unless her story was
painfully true she would not have taken such a grave risk merely to malign the
accused.

Changes made in Section 376 post Delhi gang rape

case, 2012
Following a vicious gang rape of a woman in Delhi’s capital city in 2012, the
Verma Committee was formed, whose recommendations led to significant
reforms in rape law. Some recommendations, such as not raising the consent
age to 18 from 16, as it was previously, introducing matrimonial rape, and not
requiring sanction for prosecution of armed personnel, were not accepted. But
the law changed in regards to:

1. Consent when Section 114A of the Indian Evidence Act, 1872 was
enacted,
2. Prohibiting questions in cross-examination of the victim about previous
sexual experience or immoral character,
3. Making the issue of previous sexual experience irrelevant, and
4. Certain other procedural aspects in the Code of Criminal Procedure,
1973 inter alia, relating to an investigation by woman police officers,
video recording of statements before magistrates, the time limit for
 18

completing of inquiry, the requirement of trial proceedings in camera,

etc.

Kathua Rape Case and the Criminal Law

(Amendment) Act, 201828
1. Following public outrage over the alleged gang rape and murder of an
eight-year-old girl in Rasana village near Kathua in the state of Jammu
and Kashmir, the Criminal Law (Amendment) Act, 2018 amended
Chapter XVI of the Indian Penal Code, 1860 to provide for harsher
penalties for rape perpetrators, particularly those targeting girls aged
12 to 16.
2. Rape against a woman under the age of 12 is now punishable by
rigorous imprisonment for a duration of not less than 20 years, but
which may extend to life imprisonment, as well as a fine or death.
3. Gang rape of a woman under the age of 12 is now punishable by life in
jail, a fine, or death.
4. Rape of females under the age of 16 is punishable by up to 20 years in
prison or life in prison. Life imprisonment means that the person will be
imprisoned for the rest of his or her natural life. The minimum sentence
for rape of a female over the age of 16 is ten years in prison.

Medical examination of accused and victim in

cases of rape
Medical examinations of the victim and the accused shortly after the incident
often produce a plethora of corroborative evidence in cases of rape or
attempted rape. As a result, such an opportunity should not be overlooked.
Though the prosecutrix can only be questioned with her assent, the accused can
be questioned under Section 53 of the Criminal Procedure Code of 1973. It
should also be remembered that the accused, under Section 54 of the 1973
Code has the right to request such an examination if he believes it will disprove
the charge levelled against him. Because smegma (thick, white, cheesy
substance that collects under the foreskin of the penis) is wiped off during
intercourse, the presence of smegma on the accused’s corona glandis (glans
penis) soon after the incident is proof against complete penetration. Smegma
must, however, be examined within 24 hours to be of any use.

28
Kathua Rape Case and the Criminal Law (Amendment) Act, 2018
 19

The two fingers test concept

1. Rape survivors’ right to privacy, physical and mental integrity, and
dignity are all violated by the two-finger test and its interpretation. As a
result, even if the report is positive, this test cannot ipso facto lead to a
presumption of consent.
2. Rape survivors are entitled to legal recourse that does not re-
traumatize them or violate their physical or mental integrity and
dignity, as stated in the International Covenant on Economic, Social,
and Cultural Rights of 1966 and the United Nations Declaration of Basic
Principles of Justice for Victims of Crime and Abuse of Power of 1985.
They also have the right to have medical procedures carried out in a
way that respects their right to consent.
3. Medical operations should not be carried out in a way that is cruel,
inhumane, or demeaning, and health should always take precedence
when dealing with gender-based violence. The state has a legal
obligation to provide such services to sexual abuse survivors. There
should be no arbitrary or unlawful interference with his privacy, and
proper precautions should be made to safeguard their safety.

Exploring rape cases through landmark

decisions

Suicide by victim
In the case of State of Karnataka vs. Mahabaleshwar Gourya Naik (1992)29, it
was decided that the non-availability of the victim in a rape case was to be
determined to be no reason for acquittal where the victim committed suicide
before the trial and was not available for examination. The other evidence
available had confirmed the accused’s guilt in this case. The accused was found
guilty under Sections 375 and 511 of the Indian Penal Code, 1860 since the
evidence proved at least an attempt to rape, if not rape.

Absence of injury
It is true that harm is not a requirement for determining whether or not rape has
occurred. However, each case’s factual matrix must be considered. It was noted

29
State of Karnataka vs. Mahabaleshwar Gourya Naik (1992)
 20

in Pratap Misra vs. State of Orissa (1977)30, where there was a claim of rape by
numerous people at different times, but no evidence of harm. If the
prosecutrix’s statement is plausible, the presence of injuries is unquestionably
relevant, and no confirmation would be required. However, if the prosecutrix’s
version is not credible, verification is required.

Corroboration of testimony
In the case of Rameshwar vs. The State of Rajasthan (1952)31, the Supreme
Court had decided that a woman who has been raped is not an accomplice. If
she was raped, it was an atrocity, but if she consented, there was no rape. In the
instance of a girl under the age of consent, her consent will not be considered in
the case of rape, but if she consented, her testimony will be considered suspect
as that of an accomplice. The real rule of prudence requires that the judge
consider the possibility of corroboration in every situation of this nature, and
that this be noted in the verdict. The judge, on the other hand, can forgo
corroboration if he believes it is safe to do so in the particular circumstances of
the case at hand.

Conviction on sole testimony of prosecutrix

In the case of Ramdas vs. State of Maharashtra (2007)32, the Supreme Court of
India had observed that a conviction based only on the prosecutrix’s evidence is
valid if the Court is convinced of the prosecutrix’s truthfulness and there are no
circumstances that cast doubt on her veracity. Insisting on corroboration, save
in the most exceptional of circumstances, equates a victim of another’s lust with
an accomplice to a crime, and therefore insults womanhood.

Rape by police constable

In the case of Visveswaran vs. State of Tamil Nadu (2003)33, the Supreme Court
had opined that the identity of the accused was confirmed by the fact that he
was arrested from the hotel. A police constable reportedly raped the woman in a
hotel room in this case. She couldn’t identify him and there was no test
identification parade. During the trial, the accused was unable to provide an
explanation for his whereabouts at the time of the crime. The Apex Court, while
observing that in such cases courts must take a different approach, held that

30
Pratap Misra vs. State of Orissa (1977)
31
Rameshwar vs. The State of Rajasthan (1952)
32
Ramdas vs. State of Maharashtra (2007)
33
Visveswaran vs. State of Tamil Nadu (2003)
 21

minor inconsistencies or disparities, as well as a flawed inquiry, should not sway

the Court.

Rape and conspiracy for rape

In the case of Moijullah vs. State of Rajasthan (2004)34, the Supreme Court of
India was considering a case that involved four accused persons who tried to
seduce young schoolgirls with their wealth and pretensions of friendship, then
sexually exploited and raped them. Two of them committed rape, the third
made overtures to one of the victims, and the fourth, who was also a driver,
drove them to the farmhouse, where they were exploited. Witnesses
corroborate their actions. Section 376 led to the conviction of two of them. The
third and fourth defendants were found guilty under Section 376 read
with Section 120-B (conspiracy), notwithstanding the fact that all co-
conspirators did not act in the same manner. Their life sentence was commuted
to ten years of supervised release.

Charge not proved

In the 2003 case of Sudhansif Sekhar Sahoo vs. State of Orissa 35, which
appeared before the Apex Court, the prosecutrix was a well-educated and
employed woman. She travelled a considerable distance in the accused’s jeep at
night in order to meet her superior officer. She claimed that when they stopped
at the accused’s place, he raped her. This being quite a rare behaviour, there
was no convincing justification given for meeting the officer late at night. Her
garments were free of sperm or bloodstains. She claimed virginity, but medical
evidence revealed that she was a sex addict. The accused was granted the
benefit of the doubt.

Unchaste woman
According to the Supreme Court, a woman’s unchastity does not make
her “open to any and every person to violate her person as and when he
desires.” Her evidence cannot be tossed overboard simply because she is a
woman of easy virtue. At most, the officer tasked with evaluating her evidence
would be compelled to exercise caution before accepting her testimony. The
Apex Court made this decision in the case of State of Maharashtra vs. Madhukar
N Mardikar (1991)36. In another case of the State of Uttar Pradesh vs.

34
Moijullah vs. State of Rajasthan (2004)
35
Sudhansif Sekhar Sahoo vs. State of Orissa
36
State of Maharashtra vs. Madhukar N Mardikar (1991)
 22

Om (1999)37, the Supreme Court ruled that the prosecutrix’s lack of moral
character, her use of sexual intercourse, and the possibility that she went to the
accused herself were not grounds for disbelieving her statement.

Rape and grievous hurt

A recent case of Rajesh vs. State of Madhya Pradesh (2017) that appeared
before the Apex Court involved an accused who had the victim girl (seven years
old), in his care and custody, and he perpetrated natural and unnatural sexual
actions on her over a period of time. The injuries sustained by the accused on
the day of the incident were to the head, hand, or thumb, and so could not have
been the cause of death for the girl. In such a case, the accused’s responsibility
for the conduct of the act under Section 302 of the Indian Penal Code, 1860
would be seriously questioned. The Court held that the accused should be found
responsible under Section 325 of the Indian Penal Code, 1860. As a result, the
conviction was changed under Section 302 to one under Section 325, while
preserving the conviction and penalties issued under Sections 376 (2) (f) and
377 of the Code. As a result, the death penalty was reduced, and accused was
sentenced to seven years in prison.

Assistance to rape victims : Supreme

Court guidelines
The Supreme Court found in Delhi Domestic Working Women’s Forum vs. Union
of India (1994)38 that in rape cases, the investigating agency, as well as the
subordinate courts, sometimes adopt a completely indifferent attitude toward
the prosecutrix, and as a result, the Supreme Court issued the following
directions in order to assist rape victims:

1. Legal representation should be offered to complainants in sexual

assault cases. It’s critical to have someone who knows how the criminal
justice system works. The victim’s advocate’s role would include not
only explaining the nature of the proceedings to the victim, preparing
her for the case, and assisting her in the police station and in court, but
also directing her to other agencies for help of a different nature, such
as mental health counselling or medical assistance. It is critical to
ensure continuity of support by ensuring that the same individual who
represented the complainant’s interests at the police station continues
to represent her throughout the case.
2. As the victim of sexual assault may be distressed when she arrives at
the police station, legal assistance may be required. The direction and

37
State of Uttar Pradesh vs. Om (1999)
38
Delhi Domestic Working Women’s Forum vs. Union of India (1994)
 23

support of a lawyer at this time, as well as while she is being

questioned, would be extremely beneficial to her.
3. Before any questions were made to the victim, the police should tell
her of her right to representation, and the police record should state
that she was so told.
4. For victims who do not have a lawyer in mind or whose own counsel is
unavailable, a list of advocates prepared to act in these circumstances
should be kept at the police station.
5. The advocate will be appointed by the court at the earliest possible
time, upon application by the police, however advocates will be
authorised to function at the police station before seeking or obtaining
leave from the court, in order to ensure that victims are questioned
without excessive delay.
6. In all rape trials, the victim’s confidentiality must be preserved to the
extent possible.
7. The establishment of a Criminal Injuries Compensation Board is
required in light of the Directive Principles established in Article
38(1) of the Indian Constitution. Victims of rape frequently suffer
significant financial losses. Some people, for example, are too
traumatised to return to work.
8. The court will provide compensation to victims if the criminal is
convicted, and the Criminal Injuries Compensation Board will award
compensation whether or not the offender is convicted. The Board will
consider pain, suffering, and shock, as well as lost wages owing to
pregnancy and childbirth expenditures if the rape resulted in these
events.
Furthermore, the state authorities, particularly the Director General of Police
and the State’s Home Ministry, have an obligation to issue proper guidelines and
instructions to other authorities on how to deal with such cases and what kind of
treatment the prosecutrix should receive, as a victim of sexual assault requires
a completely different kind of treatment not only from society but also from the
state authorities. The doctor who examines the rape victim must exercise
caution. In most cases, a female doctor should evaluate the rape victim.

Loopholes to Section 375 of the Indian

Penal Code, 1860
Section 375 read with Section 376 of the Indian Penal Code, 1860 comes with a
set of drawbacks which is why the law has till now failed to curb the growing
 24

numbers of rape cases in the developing land of India. Three significant

loopholes that these provisions have been wearing since 1860 have been
discussed hereunder.

Restricted definition of the term ‘rape’

“Sexual intercourse by man with his own wife, the wife not being under 15 years
of age, is not rape,” says Section 375 of the Indian Penal Code, 1860 which has
some very antiquated beliefs as its exception clause. Rape is punishable under
Section 376 of the Indian Penal Code, according to which, the rapist should be
punished with imprisonment of either description for a term of not less than 7
years but not less than life or for a term of up to 10 years, as well as a fine,
unless the woman raped is his own wife and is not under the age of 12, in which
case he should be punished with imprisonment of either description for a term
of not less than 2 years, fine, or both. In light of the current situation, it is
necessary to shift human perceptions and add a new dimension to the concept
of rape. Almost all offences should have a clear interpretation rule set so that
there are no loopholes or opportunities for injustice in the social environment.
The recent modification in the concept of rape is owing to an increase in such
conduct and a more lenient interpretation of the law.

Marital rape : a debatable concern

On May 11, 2022, the Delhi High Court issued its long-awaited decision on the
criminalization of marital rape. The bench couldn’t decide whether a sexual act
committed by a man on his wife without her consent should be regarded a
criminal or not, therefore it issued a divided decision. The Supreme Court will
now hear the case, which is still unsettled. The case is around Exception 2 of
Section 375 of the Indian Penal Code, which provides that any sexual act
performed by a man on his own wife, even if done without her consent, is not
rape as long as she is not a minor. If statistics in this regard is given a chance
to be viewed then according to the National Family Health Survey 5 (2019-2021)
study, 18% of Indian women are unable to tell their husbands ‘no’ when they do
not want to participate in sexual intercourse with them. According to the report,
over one-fifth of married women in India had their permission in sexual
intercourse with their spouses revoked. With such terrible statistics and
conflicting judicial opinions, all one can expect in this regard is progressive and
rational thinking in regard to marital rape in India.

Adult male victims of rape: need for legal

recognition in India
 25

Recognising male victims of sexual abuse as a distant reality has been

overlooked by framing sexual violence as a feminist issue. The absence of legal
action against male sexual victimisation is mostly due to decreased reporting of
male sexual violence and victims’ reluctance to come forward. If a male is
sexually assaulted by another male, Section 377 of the Indian Penal Code, 1860
applies; but, if he is assaulted by a girl, no particular legal provision exists. It is
critical to pay close attention to the definitions, categories, and types of sexual
victimisation that need to be altered in order to minimise gender prejudice.

Conclusion
India is a country where women enjoy a high social status, but we still lack strict
protections for them. We have a number of laws in place to protect their lives,
but they appear to have numerous loopholes. Rape is considered the most
horrific crime perpetrated against women, and statistics show that rape is very
common in India. There is a significant difference between will and consent.
There is a proper definition of consent under the Indian Penal Code. On the
other hand, the will is still not being clearly defined. Due to no proper definition
consent and will is being interpreted as the same thing and therefore the
decision passed by the court is vague and no proper justice is being served to
the victim. Therefore there is a dire need to introduce a formal definition of a
will under the Indian Penal Code. Section 375 of the Indian Penal Code is one of
the talked about sections due to the increase in the number of rape cases in
India in the amendments brought in the past few years have brought significant
changes in the section but still there are quite many existing flaws which need
to be addressed. We have numerous regulations in place to regulate such
horrible crime, but when it comes to implementation, we either lack someplace
or need to make an effort to control it. As a result, the crime is interpreted in a
variety of ways, which can lead to a miscarriage of justice. The same needs
significant changes which can be achieved by changing legislative minds.