Introduction:
Rape is one of the most heinous crimes a person can commit. It is not just a heinous crime but a huge disgrace to mankind as a species. It is a sexual assault that usually involves sexual intercourse with a person without their consent. In this article, we shall learn what rape is as per statutes, the importance of express consent, and against whom rape can be committed.
Along with these, the article will talk about punishments for rape, and discuss various case laws regarding the same.
Rape has been defined under Section 375 of the PC ( Penal Code, 1860), which states that rape is said to have been committed when a man has sexual intercourse with a woman:
- Against her will;
- Without her express consent;
- By obtaining her consent by force, or threatening to kill or hurt her or someone she cares about;
- By making her believe that the man has been lawfully married to her;
- By obtaining her consent during unsoundness of her mind, when she was intoxicated, or by providing any other substances that might affect her decision-making ability;
- With or without her consent if she is under 14 years old.
- This clause also states that mere penetration is sufficient to constitute sexual intercourse, which can be treated as rape.
Exception. Sexual intercourse by a man with his own wife, the wife not being under thirteen years of age, is not rape.
Writter’s Comments- Here the whole definition is quite foolish as the definition only recognised by a man with women not the vice versa. A man can also be raped against his will.
- ‘If a man has sexual intercourse without the consent of a woman above the age of sixteen years without her consent, or by intimidation or deceit, or with or without the consent of a woman below the age of sixteen years then he will be considered to have raped the said woman. ‘
-[Section 9 of PVAWC 2000]
Punishment for rape?
In penal code 1860(section 376)
Whoever commits rape shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, unless the woman raped is his own wife and is not under twelve years of age, in which case he shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
According to Women and Children Repression Prevention Act,
“Lifetime Rigorous Imprisonment” mentioned in Section 9(1) of the Act has been replaced by “Death or Lifetime Rigorous Punishment” following the nation wide protest in 2020.
Case laws- 1.Tuka Ram And Anr vs State of Maharashtra, AIR 1979 SC 185 (Mathura Case)
Facts of the case:
In Mathura rape case, a young tribal girl named Mathura was allegedly raped by two policemen while she was in custody. It was the incident of custodial rape, took place on March 26th, 1972, where the girl was raped in Desai Gunj Police Station in Maharashtra.
What was held?
Sessions Court passed the judgment in favor of defendants and held them not guilty. It was held that Mathura gave her consent voluntary as she was habituated to sexual intercourse. Learned Sessions Judge found that there was a major difference between “sexual intercourse” and “rape” so, it was a case of sexual intercourse in which she had consented voluntary and not rape. Thus, Case was further appealed in the Bombay High Court which took note of all the findings arrived during the trial in Sessions Court. High Court appreciated the observation given by the learned Sessions Judge that there is a major difference between sexual intercourse and rape but they forgot to observe that there is a world of difference between “consent” and “passive submission”. On the ground of such observations, the court held that the defendants were guilty of rape and the consent given was not voluntary and it was due to serious threats by policemen. It was held that:
Later, the case went to the Supreme Court, where court acquitted the accused and set aside the judgment passed by the Bombay High Court. The Court stated that no marks of injury were found on the person of the girl, there were no signs of any struggle, any resistance, also from the shreds of evidence it can be shown that the girl had not been put in fear of death or hurt so the consent would be considered as free or voluntary. Also, the girl was habituated to sex so, it may be possible that she might have incited the cops. So, it was concluded and held by the Supreme Court of India that the sexual intercourse which was in question in the given case is not proved to amount to rape.
Written by: Md. Nayem Shahriar
- BA hons In Bangla(old first class)
National University - LL.B hons(Ongoing)
Bangladesh Open University
