Law of Rape in India

By Team Legal Helpline India, December 26, 2014

IMPORTANT: Being a Law Firm Delhi, we provide online services on all subjects of law, call us at our board No. 9-11-2335 5388 for any contingent requirement or mail us the facts through contact us page of our website.

The word rape is Latin term ratio, which means seize i.e. forcible seizure which constitutes the main ingredient of the offence of rape. Law of rape in India however further widens the definition and means intercourse with a woman without her consent by force, fear or fraud. Several explanations of force fear and fraud has been incorporated to make the law of rape in India more comprehensive and stringent. Law of rape in India is contained in Indian Penal Code; Section 375 defines rape which can be reproduced as under:

Section 375 IPC:

Rape- A man is said to commit rape who, except in the case hereinafter expected, has sexual intercourse with a woman under circumstances failing under any of the six following descriptions:-

First Against her will.

Secondly Without her consent.

Thirdly 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.

Fourthly 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.

Fifthly 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.

The essential ingredients of rape thus can be summed up as under:
There should be Sexual Intercourse and Penetration.
It should be against the will of the female.
It should be without her consent. The circumstances of consent can be various and there can be several eventualities in this regard which can be any of the following:
i) Consent know to be given under fear or misconception.
ii) Consent of insane or intoxicated woman.
iii)Consent of child.
iv) Consent obtained under fear of death or of hurt.
v) Consent obtained by fraud.
vi) Consent of women under Sixteen years of age.

Section 376 of IPC:

Punishment for Rape(1) Whoever, except in the cases provided for by sub-section(2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women reaped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment or either description for a term which may extend to two years or with fine or with both:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence or imprisonment for a term of less than seven years.
(2) Whoever,
(a) being a police officer commits rape
(i) within the limits of police station to which he is appointed;
Or
(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or
(iv) on a woman in his custody or in the custody of a police officer subordinate to him; or
(c) being a public servant, take advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him ; or
(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or
(e) commits rape on a woman knowing her to be pregnant; or
(f) commits rape on a woman when she is under twelve years of age; or
(g) commits gang rape,
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;

Provide 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.
Explanation 1. – Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section.
Explanation 2. – “Womens or children s institution”Ě means an institution, whether called an orphanage or a home for neglected woman or children or a widows home or by any other name, which is established and maintained for the reception and care of woman or children.
Explanation 3. – HospitalĚ means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons requiring medical attention or rehabilitation.

Gang rape:
Section 376(2)(g) Explanation 1. of Indian Penal Code defines gang rape states that where a woman is raped by one or more in a group of persons, each of the persons shall be deemed to have committed gang rape, when the offence is committed in furtherance of their common intention.

376A. Intercourse by a man with his wife during separation – Whoever has sexual intercourse with his own wife, who is living separately from him under a decree of separation or under any custom or usage without her consent shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.

376B. Intercourse by public servant with woman in his custody ď Whoever, being a public servant, takes advantage of his officials 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.

376C- Intercourse by superintendent of jail, remand home etc. – 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 officials 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.
Explanation 1. – SuperintendentĚ in relation to jail, remand home or other place of custody or a women s or children s institution includes a person holding any other office in such jail, remand home, place of institution by virtue of which he can exercise any authority or control over its inmates.
Explanation 2 – The expression ” women’s or children’s institution ” shall have the same meaning as in Explanation 2 to sub-section(2) of Section 376].

376D. Intercourse by any member of the management or staff of a hospital with any woman in that hospital. Whoever, being on the management of a hospital or being 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 be extend to five years and shall also be liable to fine.

Explanation: The expression “hospital” shall have the same meaning as in Explanation 3 to sub-section (2) of section 376.
Section 228 A of the Indian Penal Code further makes an important provision regarding such crimes which reads as under:
Section 228 A: Disclosure of identity of the victim of certain offences, etc. (1) Whoever prints or publishes the name or any matter which may make know the identity of any person against whom an offence under section 376, section 376 A, section 376 B, section 376 D is alleged or found to have been committed (hereinafter in this section referred to as the victim) shall be punished with imprisonment of either description for a terms which may extend to two years and shall also be liable to fine.
(2) Nothing in sub-Section (1) extends to any printing or publication of the name or any matter which may make know the identity of the victim if such printing or publication is-
(a) by or under the order in writing of the officer-in-charge of the police station or the police officer making the investigation into such offence action in good faith for the purposes of such investigation ; or
(b) by, or with the†authorization†in writing of, the victim; or
( c ) where the victim is dead or minor or of unsound mind, by, or with the authorization in writing of, the next-of-kin to anybody other than the chairman or the secretary, by whatever name called, or any recognizes welfare institution or organization.
(3) Whoever prints or publishes any matter in relation to any proceeding before a court with respect to an offence referred to in sub-section (1) without the previous permission of such courts shall be punished with imprisonment of either description for term which may extend to two years and shall be also be liable to fine.

THE POSITION OF LAW OF RAPE IN INDIA:

The punishments as prescribed for rape vary and depend upon the circumstances hence the courts have been given the liberty to impose the punishments starting from 7 years up to life imprisonment. The law of rape in India imposes a mandatory obligation upon the courts to deal with such cases by giving adequate and special reasons for awarding lesser sentence. The Supreme Court has underlined the need to look the circumstances by the court awarding the sentence. The sentence awarded must depend upon the conduct of the accused, the state and age of the sexually assaulted female and gravity of the criminal act. Courts have also emphasized that the crimes of violence upon women must be severely dealt with land public abhorrence of the crime needs reflection through the imposition of appropriate sentence by the courts which may serve as a deterrent for the commission of like offences by others. The Supreme Court has further issued directions to the National Women Commission for formulation of scheme for assistance to victims of rape and comprehensive directions in this regard have been issued which are now being followed.

In most of the rape cases, the proceedings of the court are held in camera and the identity of the victim is kept secret, she is however subjected to serious cross examination during the trial by the defense counsels which are often very stark and revealing which may cause embarrassment to the victim but the courts have the limitation of striking a balance between the rights of the prosecutrix and the accused.

We can however sum up by saying that rape is an invasion of the body and personality of the victim which leaves a permanent scar on her persona and the persons assigned to deal with such cases should handle the matters in more sensitive and humane manner.

NOTE: As a Law Firm Delhi, we provide online services on all subjects of law, call us at our board No. 9-11-2335 5388 for any contingent requirement or mail us the facts through contact us page of our website.

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