Based on the recommendations made by the Justice Verma Committee, the Criminal Law (Amendment) Act, 2013, came into force with effect from 3 February 2013. The Criminal Law (Amendment) Act, 2013 made amendments to the Cr PC, 1973, Indian Evidence Act, 1872 and the IPC, 1860. The Criminal Law (Amendment) Act, 2013 expanded the definition of rape and substituted new sections for old sections such as sections 370, 375, 376, 376A, 376B, 376C and 376D.
The revised section 375 has widened the definition of the offence of rape.
It, unlike its earlier version, not confined “rape” merely to penile-vaginal penetration (in the circumstances specified thereunder), but is also extended to
- penile-urethra, penile-oral, or penile-anal penetration;
- object-vaginal, object-urethra, or object-anal insertion;
- insertion of a part of body, other than the penis, in the vagina, the urethra or anus of a woman;
- manipulation of any part of body of a woman for causing vaginal, urethral or anal penetration and
- application by a man of his mouth to the vagina, urethra or anus of a woman or making her to do so with him or any other person.
The essential ingredients of the offence of rape are:
- there must be sexual intercourse, as understood in terms of the provisions of section 375(a) to (d), with a woman by a man;
- such a sexual intercourse must be under any of the seven circumstances:
- against her will;
- without her consent;
- with consent obtained under fear of death or of hurt;
- consent given under misconception of fact that the man is her husband;
- consent given by reason of unsoundness of mind, intoxication or under influence of any stupefying or unwholesome substance;
- with a woman under eighteen years of age, with or without her consent; or
- with a woman who is unable to communicate her consent.
Analysis:
- Section 375 of Indian Penal Code makes an act both- ‘against her will’ and ‘without her consent’, culpable.
- ‘Against her will’: When something is done against the will of the person, the element of active opposition is absent. The word ‘will’ implies the faculty of reasoning power of mind that determines whether to do an act or not.
- On the other hand, the expression ‘without her consent’ would comprehend an act of reason accompanied by deliberation.
- ‘consent’ means an unequivocal voluntary agreement when the person by words, gestures or any form of non-verbal communication, communicates a willingness to participate in the specific sexual act. Thus, to absolve a person of criminal liability, consent must be given freely and it must not be obtained by fraud or by mistake or under a misconception of fact.
Clause 3
Clause (3) of section 375 stipulates that consent obtained by putting the woman or any person in whom she is interested, in fear of death or of hurt is not consent and hence, the act would amount to rape. The fear which led to her consent for sexual intercourse must be of death or of hurt to herself to another person she is interested in.
Clause 4
Fourthly—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.
If a girl does not resist intercourse in consequence of misapprehension this does not amount to a consent on her part.
In such a situation, the essence of the clause, i.e. the man knows that he is not her husband and the woman has been consenting for sexual intercourse believing that he is her husband, is met with. Such a sexual intercourse becomes non-consensual and it amounts to rape.
Clause 5
Where a man had carnal knowledge of a girl of imbecile mind, and the jury found that it was without her consent, she being incapable of giving consent from defect of understanding, it was held that this amounted to rape. Where the accused made a woman quite drunk, and whilst she was insensible violated her person, it was held that this offence was committed. These cases will now fall within the mischief of the fifth clause to section 375, IPC, 1860.
Sixthly —With or without her consent, when she is under eighteen years of age.
Seventhly —When she is unable to communicate consent.
354. Assault or criminal force to woman with intent to outrage her modesty—Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will there by outrage her modesty, 1[shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.
The essential ingredients of the offence under section 354, IPC, 1860 are as under:
- That the person assaulted must be a woman.
- Accused must have used criminal force on her intending thereby to outrage her modesty.
- Knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention of having such outrage alone for its object.
Modesty Meaning—
The essence of a woman’s modesty is her sex. The culpable intention of the accused is the crux of the matter.
The reaction of the woman is very relevant, but its absence is not always decisive. Modesty is an attribute associated with female human beings as a class. The ultimate test for ascertaining
whether the modesty of a woman has been outraged, assaulted or insulted is that the action of the offender should be such that it may be perceived as one which is capable of shocking the sense of decency of a woman.
The word “modesty” is not to be interpreted with reference to the particular victim of the act, but as an attribute associated with female human beings as a class. It is a virtue which attaches to a female on account of her sex.
In State of Punjab v Major Singh, a three-Judge Bench of the Supreme Court considered the question — Whether modesty of a female child of seven and half months can also be outraged. The majority view was in the affirmative. Bachawat, J, on behalf of majority, opined as:
The offence punishable u/s. 354 is an assault on or use of criminal force to a woman with the intention of outraging her modesty or with the knowledge of the likelihood of doing so. The Code does not define ‘modesty’. What then is a woman’s modesty? … The essence of a woman’s modesty is her sex. The modesty of an adult female is written large on her body.
Young or old, intelligent or imbecile, awake or sleeping, the woman possesses a modesty
capable of being outraged. Whoever uses criminal force to her with intent to outrage her modesty commits an offence punishable u/s. 354.
The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive, as, for example, when the accused with a corrupt mind stealthily touches the flesh of a sleeping woman. She may be an idiot, she may be under the spell of anaesthesia, she may be sleeping, she may be unable to appreciate the significance of the act; nevertheless, the offender is punishable under the section.
