The provisions relating to crimes against women can be classified into 2 categories:
The crime provided under IPC
Crime identified under special social legislation
IPC crimes against women can be further classified into different categories:
Rape
Kidnaping and abduction of girls and women for different purpose
Homicide for dowry and dowry death
Assault and molestation
Sexual harassment and eve teasing
Bigamy
Cruelty
Abetment of suicide for dowry
RAPE:
Section 375 defines rape and section 376 prescribes punishment and 376A to 376 D defines custodial rape and prescribes punishment for the same.
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 following six categories:
First- Against her will,
Second- Without her consent or with her consent,
Third- when her consent had been obtained by putting her or any person in whom she is interested in fear of death or of hurt,
Fourth- 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,
Fifth- 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 stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent,
Sixth- with or without her consent, when she is under 16 years of age.
Exception to it is also laid down under the same section, that sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape.
Therefore, marital rape is not recognized under IPC section 375.
The EXPLANATION:
The first clause of section 375 stipulates that a man commits the offence of rape, if he has sexual intercourse with a woman ‘against her will’.
In case of State of Maharashtra v Madhukar Narayan Mardlkar, 1991, Even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when he likes.
The term against her will is not similar to without her consent as in clause 2 of section 375. Though every act done ‘against the will’ of a person will also mean that it is done ‘without the consent’ of the person, an act done ‘without the consent’ of a person does not necessarily mean ‘against the will’. ‘Without consent’ denotes an act being done in spite of opposition of the person.
‘Will’ is the faculty or power of the mind by which we determine either to do or not to do something. It implies consciousness, cognition and mental determination.
The second clause of section 375 stipulates that if a man has sexual intercourse with a woman ‘without her consent’, and then it amounts to rape.
The court held, in Rao Hamain Singh v State, 1958, that consent as a defence to an allegation of rape requires voluntary participation, not only after the exercise of intelligence based on the knowledge of the Act, but after having freely exercised the choice between resistance and assent.
So helpless resignation in the face of inevitable compulsion or passive giving in is not consent in law.
Consent here means free consent, which must be an act of reason, accompanied with deliberation, after the mind has weighted as in a balance, the goods and evil on each side, with the existing capacity and power to withdraw the accent according to one’s will or pleasure.
Consent implies the exercise of a free and untrammeled right to forbid or without what is being consented to, it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former. A woman’s consent to sexual intercourse must be unequivocal voluntary agreement or willingness to participate in the specific sexual act by words, gestures or any form of verbal or non-verbal communication. However, the woman does not resist
In case of Rape, it is no defence that the woman consented after the Act. Section 114-A of evidence act, provides a presumption as to absence of consent in certain prosecution for rape.
When the offence of rape is made: According to this section, where sexual intercourse by accused is proved and the question is whether it was without the consent of woman to have been raped and she states in her evidence before the Court, that she had not given consent, the court shall presume that consent was not given by her.
Necessity of penetration: In interpreting the explanation to section 375 IPC, whether complete penetration is necessary to constitute an offence of rape, various High Court have taken a consistent view that even the slightest penetration is sufficient to make out an offence of rape and the depth of penetration is immaterial.
Penetration is not only sufficient but also necessary to constitute the sexual intercourse required of this offence.
Also, just penetration is sufficient to constitute sexual intercourse, necessary for the offence of rape. The depth of penetration is immaterial as far as the offence under section 376 is concerned, as held in case of Ghanshyam Misra v State of Orissa, 1995.
In Phani Bhushan Behera v State of Orissa, 1995, The Orissa High Court has held: The rupture of hymen is by no means necessary to constitute the offence of rape. Even the slight penetration in the vulva is sufficient to constitute the offence of rape. Vulva penetration with or without violence is as much rape as vaginal penetration.
It was stated in Madan Gopal Kakkad v Nabal Dubey, 1992, under section 204 that the question as to whether an act amount to rape or not, is not a matter of medical opinion but a question of law.
Furthermore, there is a difference between submission and consent. Submission without resistance does not necessarily amount to consent. The person assaulted may be too young to appreciate the nature of the act done or to do more than submit without actually consenting. In R v Day, it was held that submission by a child in the hands of an older and stronger person, and possible under the influence of fear of or a sense of constraining authority, has been held not to be equivalent to consent.
Lastly, the person causing death of the woman by rape can be convicted of homicide as well, depending upon his intention and knowledge of his act and its proximity.
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