This article is written by Samridhi Sachdeva pursuing BBA LLB from Gitarattan International Business School, GGSIPU. This article focusses on the laws on rape and unnatural offences. Also, tries to describe the ingredients necessary to commit these offences in depth.
The most heinous crime related to women is Rape. Rape, not only physically but also emotionally and mentally destroys a woman. And, even society pushes the girl towards a severe mental trauma. It completely kills a woman from inside and all her dreams and feelings come to an end.
Some laws have been made describing Rape and its punishment under the Indian Law. But, any punishment for Rape won’t ever do justice with the pain of rape victim. Like, even death punishment for rape will not be enough, some strict punishment should be made for the rapists to give complete justice for the rape victim. But, if compared to the early times, the laws have been amended and made slightly strict.
And, on the other hand, unnatural offences covers unnatural sexual intercourse that is against the normality of nature. Unnatural, here means sexual intercourse, which does not form a part of reproductive sexual intercourse. The guilty or the accused commits this offence either with a man, woman or animal.
Laws on Rape
The word ‘rape’ arises from the Latin word ‘rapio’ , which means ‘to seize’. So, rape basically means a forcible seizure. Rape is the sexual violation without the consent of woman, with fraud or force.
The Indian Penal Code describes sections related to the laws on rape and its punishment. Section 375 defines rape and Section 376 defines its punishment. Section 376A makes husband liable to punishment for intercourse with his wife during separation and Sections 376B to 376D gives punishment for ‘custodial rape’.
According to section 375, a man is said to commit rape if he-
- Penetrates his penis, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or with any other person, or
- Inserts any object or part of his body(not penis) into the vagina, urethra or anus of a woman, or
- Manipulates any part of the woman’s body, so as to cause penetration into the vagina, urethra, anus or any other part of woman’s body, or
- Applies his mouth to the vagina, urethra or anus of a woman
And explanations given under this section are that the term ‘vagina’ should also include the ‘labia majora’. And also, that if a woman physically, does not resist the act of penetration then, this can not be regarded as consenting to the sexual activity.
Necessary ingredients of Section 375
The section lists some ingredients that prove that the act was against the will and consent of the woman. So, a woman is not liable for rape. The essential ingredients are:
- Against her will: It requires that there should be an explicit opposition on the part of the victim towards the act and still the accused committed the act.
- Without her consent: Absence of consent is the essence of rape. A man is the best judge of his/her own interest and will never put herself/himself in any act that can cause injury. The definition of consent is given under Section 90 of the IPC.
- By obtaining her consent by putting her or any other person, she is interested in, with fear of death or of hurt is no consent in law. Obtaining consent by such practices is not a valid consent.
- When her consent is obtained by making her believe that she is lawfully married to that man: In this case, the consent of the woman is obtained by making her believe the misconception, so that she allows for sexual intercourse but in fact, the person is not the lawful husband of the woman but just pretends her to be one. So, this is no consent in law.
- Consent obtained through unsoundness of mind: When the consent of woman is obtained by reason of unsoundness or when she can not understand the nature of the act is no consent in law. This clause is the new addition in this section after the Criminal Law (Amendment) Act 43 of 1983. It is to protect and safeguard the interest of the woman, who gives consent to the man for sexual intercourse without knowing the nature of the act by reason of unsoundness of mind or under the influence of stupefying or unwholesome substance.
- Act done when she is under 18 years of age: Consent obtained, when the girl is under 18 years of age is not a valid one. Since, she is unknown to the nature and consequences of the act. So, she is incapable of giving her consent to any such sexual act.
- When she is unable to communicate consent: Any condition or circumstances that resist her to give consent to such acts can not be a reason to commit the offence.
Exceptions under Section 375
There are two exceptions under section 375, that does not form part of rape:
- Any act which is done during the medical procedure or intervention.
- Any sexual act done by a man with his own wife, wife not being under fifteen years of age.
Amendments after 2013
Certain amendments have been made after the Act 13 of 2013. They are as following:
- Meaning of penetration has been given a different form. Penetration now amounts to any kind of sexual penetration done by a man into the body of a woman. And in case of a girl child, of tender age, then trying to do the act of penetration will also amount to rape.
- The punishment of rape: Section 376 of IPC describes the minimum punishment of rape, i.e. seven years of imprisonment under clause (1) which may extend to life imprisonments.
- The meaning of consent has also been expanded by adding the clause (5) under section 375.
In 2013, certain changes in the punishment of rape were made to deter people from committing this crime. It has been divided in two sub-sections to fix punishment relating to the seriousness of the crime
Sub-section (1) describes the punishment of rape with a minimum of seven years of imprisonment that may extend to the imprisonment of life and fine.
Sub-section (2) describes the punishment of rape which is not less than 10 years of imprisonment but may extend to the imprisonment of life till death and fine. This sub-section gives punishment of rape, if committed by a public servant, police officer, member of armed forces, person being on management or staff of a jail, or other place of custody of women’s or children’s institution or by a near relative of the person raped.
In a recent judgement of State of Karnataka v. Puttaraja (2004), the Supreme Court through Justice Arijit Pasayat, said that the rapist not only causes physical injuries but also leaves scars on the dignity, honour and reputation of a woman. So, leniency in punishment of the sexual offences is against the public interest and such animals should be punished to commit such heinous crime.
It covers those cases of rape which cause such injuries to the woman, that may lead to her death or persistent vegetative stage (PVS). The punishment for this is imprisonment of not less than 20 years and which may extend to imprisonment for life.
When a husband, after separation with his wife, commits rape on her, shall be punished with imprisonment of either description of term of not less than two years and which may extend to seven years with liability to pay fine.
This section creates a new category of sexual offences that does not amount to rape because the consent of victim is given, by compelling. These offences are committed by persons who hold a supervisory power and position in the institution under their control. They take advantage of their power and authority and forcefully have sexual intercourse. These offences have been known as ‘custodial rape’. Punishment for such offence is imprisonment of not less than five years but may extend to ten years with fine.
This is a new section that talks about gang rape and describe its punishment. By applying the joint liability principle, when one or more person commits rape on women together, then they are liable under this section. Punishment is not less than imprisonment of 20 years but may extend to imprisonment for life and fine for the medical expenses of the woman.
When a person who was already accused earlier under section 376, 376A or 376D if convicted again for the offence of rape under the said sections, will be punished with imprisonment for life or death.
Laws on Unnatural Offence
Section 377 of the IPC describes the act of unnatural offence. Any person who commits unnatural carnal intercourse with a man, woman or animal must be punished under this section. The penetration in this section must be done into the anus. Consent in this section is immaterial. The punishment for this offence is imprisonment of life or imprisonment that may extend to 10 years with fine. The ingredients of this section are:
- The act should be against the order of the nature.
- The accused must have carnal intercourse with man, woman or animal.
- The act was done voluntarily by the accused.
- Proof of penetration.
Two types of unnatural offences are discussed under this section:
- Sodomy: It describes the intercourse per anus by a man with a man or with a woman or with an animal. It may either be homo or heterosexual.
- Bestiality: It means that the sexual intercourse is done either by a man or by a woman in any way, with an animal or bird.
Despite being such laws and punishments, rapists don’t shy to commit such crimes with women. They don’t care whether the girl is 5 years old, 25 years old or 70 years old, they just commit the offence and completely destroy the life of women. More severe punishments should be made for such offences and the rape cases should be taken very seriously. Also, women need to be strong as well to fight such animals. And the laws should focus more on the roots of this crime rather than just punishing the rapists.