Appendix A

MULTI -DIMENSIONAL ANALYSIS OF LAWS RELATED TO RAPE

IN INDIA

Submitted by

Name PRN
Noureen Siddique 18010324097

Symbiosis Law School, Hyderabad

Symbiosis International University, PUNE

In
September, 2019

Under the guidance of

Mr. Hifajath Ali
Assistant Professor

1
 Appendix B

CERTIFICATE

The project entitled “Multi-Dimensional Analysis of Laws related to Rape in India” is

submitted to the Symbiosis Law School, Hyderabad for Law of Crimes I: Penal Code as part
of Internal Assessment is based on my original work carried out under the guidance of Mr.
Hifajath Ali Syed from 01/09/2019 to 23/09/2019. The Research work has not been submitted
elsewhere for award of any degree. The material borrowed from other sources and
incorporated in the research paper has been duly acknowledged. I understand that I myself
would be held responsible and accountable for plagiarism, if any, detected later on.

Signature of the Candidate Signature of Faculty-in-Charge

Date: Date:

2
 Appendix C

Acknowledgment

I would like to express my sincere gratitude and indebtedness to Mr. Hifajath Ali Syed,
faculty Law of Crimes I: Penal Code for his/her enlightening lectures, information and
guidance provided for conducting this research work. I would also like to express my sincere
gratitude to our teaching staff for guiding me the path towards gaining knowledge.
I would like to thank the Library Staff of Symbiosis Law School, Hyderabad as well for their
co-operation. I would also like to thank my batch mates and seniors who inspired, helped and
guided me in making this project.
I am grateful to some of my seniors/friends namely Ms. Merin George and Mr. Sabarinath S
for their incredible guidance and support.

Signature of the Candidate

Date:

3
 INDEX

Serial No Heading Page No

1 List of Cases 5
2 Bibliography 6-7
3 Introduction 7-8
4 Research Objectives 8

5 Research Methodology 9
6 Research Questions 9
7 Literature Review 9
7 Chapter 1 : Defining Rape under Indian Laws 10
8 Chapter 2 : Legal Provisions related to Rape 10-17

9 Chapter 3 : Evolution of Anti Rape Laws in India 17-21

10 Chapter 4 : Analysing Rape Laws from different 21-24

Dimensions
11 Conclusion and Suggestions 24-25

LIST OF CASES
4
1. Rafiq vs State Of U.P (1981 SCR (1) 402)
2. Phul Singh v. State of Haryana (AIR 1980 SC 249)
3. Prithi Chand v. State of Himachal Pradesh (AIR 1989 SC 702)
4. Mohd. Zuber Noor Mohammed Changwadia v. State of Gujarat (1999 Cr LJ 3419 (Guj))
5. State of Uttar Pradesh v. Chottey Lal (2011 (2) SCC 550)
6. State Of Himachal Pradesh vs Mango Ram (2000 (7) SCC 224)
7. State of Punjab v. Gurmit Singh (1996 SCC (2) 384)
8. Rao Harnarain Singh vs. State (1958 Cri LJ 563)
9. R v. Flattery ((1877) 2 QBD 410)
10. Uday v. State of Karnataka ((2003) 4 SCC 46)
11. State of Maharashtra v. Prakash And Another (AIR 1992 SC 1275)
12. Bhupinder Singh v. Union Territory of Chandigarh ((2006) 4 RCR (Cri) 692)
13. State v. Deepak Dogra (1988 (36) BLJR 678)
14. Tulshidas Kanolkar v. State of Goa (2003 (8) SCC 590)
15. Dilip v. State of M.P (1987 Cri. L. J. 212)
16. State (Govt Of Nct Of Delhi) vs Ramtej ((2003) 11 SCC 367)
17. Tukaram and Another v. State of Maharashtra (1979 SCR (1) 810)
18. Sakshi v. Union of India ( AIR 2004 SC 3566)
19. Mukesh & Anr v. State For Nct Of Delhi & Ors ((2017) 6 SCC 1)
20. Mohd. Habib v. State (1989 Cri LJ 137)
21. State of Maharashtra v. Madhukar N. Mardikar ((1991) 1 SCC 57)
22. Chairman, Railway Board v. Chandrima Das (AIR, 2000 SC 988)

BIBLIOGRAPHY
Books Referred

5
1. K.D. Gaur, Textbook on Indian Penal Code, Universal Law Publishing, Fifth Edition
2. Prof. S. N. Misra, Indian Penal Code, Central Law Publications, Twenty First Edition
3. Ratanlal and Dhirajlal, The Indian Penal Code, Lexis Nexis, 2014
Statutes Referred
1. Indian Penal Code, 1860
2. Protection od Children from Sexual Offences (POCSO) Act, 2012
3. Indian Evidence Act, 1872
Websites Referred
1. https://www.youthkiawaaz.com/2018/08/indias-anti-rape-laws-the-evolution/ (Visited on
September 20, 2019)
2. https://www.lawctopus.com/academike/section-375-analysis-of-provisions-relating-to-
rape/ (Visited on September 22, 2019)
3. http://lawtimesjournal.in/rape-and-its-punishments/ (Visited on September 22, 2019)
4. http://www.legalservicesindia.com/article/471/Rape-Laws-In-India-Appropriate-or-
not?.html (Visited on September 19, 2019)
5. https://feminisminindia.com/2017/06/22/historical-journey-rape-laws-india/ (Visited on
September 22, 2019)
6. http://www.legalserviceindia.com/articles/rape_1.htm (Visited on September 21, 2019)
7. https://shodhganga.inflibnet.ac.in/bitstream/10603/137067/12/12_chapter_03.pdf (Visited
on September 22, 2019)

Research Papers and Articles

1. Radha R. Sharma , Rupali Pardasani , Sharda Nandram, “The problem of rape in India: a
multi-dimensional analysis”, Volume 7, International Journal of Managing Projects in
Business, 2014
2. Sally Gold, Martha Wyatt, “The Rape System: Old Roles and New Times”, Volume 27,
Catholic University Law Review, 1978
3. V. K. Madan, R. K. Sinha, “The Dynamics of Rape in Modern Indian Society”, Volume
4, AGORA International Journal of Juridical Sciences, 2013

Legal Databases

1. SCC

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2. Manupatra
3. HeinOnline

INTRODUCTION

In the present day world, on a day to day basis we can see various campaigns and movements
to bring up equality and safety to the women in India as well as across the world. It can be
definitely be noted that the status of women in the Indian society and level of education,
exposure of etc that is obtained by women has developed considerable compared to the past
few decades. But, it is definitely saddening to notice that India, being a country that is so
united with its diversities and cultures, is one of the nations with the highest crime rate
against women. Women in India are not completely safe to move around freely during all
times of the day. In the annual report published by National Crime Records Bureau (NCRB)
in the year 2013, 24,923 rape cases were reported across India in 2012. Now the rate has
increased when compared to 2012. The conviction rate for rapists or perpetrators has fallen at
a very steep rate over the past 40 years. Out of all trials that are held against rape in the
country, only one out of four accused are convicted. It is also to be taken into consider that
there are a large number of cases that go unreported because such crimes are committed by
the family members or known persons of the victim and the family resists to file a suit in the
name of family honour. Rape or unwanted sexual activities cause a large number of mental as
well as physical complications and distress in the victims which include victimization, social
exclusion, marital issues, depression, anxiety, fear etc. Justice Krishna Iyer commented that
“A murderer kills the body but a rapist kills the soul”1.

India witnesses candle light marches, public protests and agitation when heinous and
inhumane crimes are committed against our daughters on a regular basis. Whether it be the
heart breaking Nirbhaya Case of 2012 or the Kathua and Unnao cases that occurred recently.
With stringent laws against rape in India, it can be clearly seen that the rape rate as well as
the intensity of crimes against women are increasing in an alarming rate. The phrase ‘rarest of
rare’ is being so common these days that it is difficult to evaluate what comprises of rarest of
rare cases. Politicians are regularly accused for sexual crimes, relatives and acquaintances are
convicted for the same and people in power are the ones that abuse the women in our country.
Does this clearly denote the inadequacy of stricter rape laws in our country or is it completely

1
Rafiq vs State Of U.P (1981 SCR (1) 402)

7
based on the mindset of the people in the society? To determine this, a complete evaluation of
the laws related to rape in India has to be studied in detail so as to come to a conclusion on
what causes such an alarming rape rate in India and what leads to the fearlessness in the
minds of the culprits. Also, the question whether the rape laws in India are protective of all
the genders equally are to be considered. Are our men, transgenders and other recognized
genders equally protected under the rape laws that are covered under IPC and other related
statutes? Rape laws in India have to be studied from various perspectives and dimensions in
order to answer these questions which are so important in the present times. The aspect as to
whether the rape laws should go on with more stricter amendments and punishments will also
be covered through this research paper.

RESEARCH OBJECTIVES

This research paper is prepared considering the following objectives and aim in order to
achieve the desired results and to get a better understanding on the topic that is covered
through the research paper:

 To obtain a clear understanding as to what rape is, the laws that define rape and its
punishment in India with special reference to the Indian Penal Code, 1860.
 To analyse the rape laws in India from different perspectives and dimensions in order to
evaluate what changes are to be brought in the present provisions that are present.
 To study the evolution of rape laws in India and bring about suggestions or changes in the
current legal provisions that deal with rape.
 To analyse whether the present laws are adequate or inadequate according to the present
scenario and cases that occur.
 To study some important precedents, cases and judgements that led to the current position
of statutes related to Rape in India.

RESEARCH METHODOLOGY

8
A doctrinal method of research has been used in preparing this research paper which includes
collection of secondary data from various sources such as books, articles, research papers,
online legal databases, bare acts etc. The information collected from these sources form the
crux and content of the research project so as to come to a valid conclusion. Landmark
Judgements and cases have been referred in detail to understand how various statues have
been used to pronounce judgements in similar cases. Important text books and study materials
have also been referred for the same.

RESEARCH QUESTIONS

Following are the questions that are sought to be answered through this research paper:

 What are the different statues and provisions that define rape and its punishment in India?
 Does the current legal provisions regarding rape require to go through further
amendments and changes?
 How are the rape laws in India analysed from different dimensions or perspectives?

LITERATURE REVIEW

For the purpose of this research I have referred the bare act of Indian Penal Code, 1860 and
also as a base for my research I have referred in detail the Textbook on Indian Penal Code
written by K.D. Kaur in which the legal provisions of rape and the punishments are explained
in an elaborate manner. I have also referred from the research paper ‘The Problem of Rape in
India: A Multi-dimensional Analysis’ written by Radha R. Sharma , Rupali Pardasani ,
Sharda Nandram which explains in detail the rape laws in the country and how it is
interpreted by the courts in our country. The paper also puts light on the aspects that lead to
rape, rape from the eyes of the society and gender neutrality of the rape laws in India.

9
Chapter 1 : DEFINING RAPE UNDER INDIAN LAWS

Defining what rape is and when a woman is raped is something of a complex nature. The
term ‘rape’ is derived from the Latin word Rapio which denotes ‘to seize’. Thus rape in the
literal meaning is said to be the forceful seizure or usage of a woman without her consent and
against her will. Therefore rape is said to occur whenever a man penetrates a woman or
commits sexual intercourse with her without her consent or will. Rape can also be stated as
“violation with violence of the private parts of a woman, an outrage by all means”2.

The question as to what being penetrated comes up when studying the definition. A slight
touch of the penis with the vagina can also be considered as rape and a broken hymen or
ejaculate is not necessary to prove that rape has been committed on the woman. This has
come a long way when deciding what constitutes rape according to the legal provisions that
are mentioned through various laws and statutes. None of the statutes in India define rape
from the context of a man i.e. it is understood that a woman cannot commit rape against a
man as she cannot fulfil the necessary conditions that constitute an act to be considered as
rape.

In the case Prithi Chand v. State of Himachal Pradesh 3, the court stated that mere absence
of spermatozoa inside the vagina or anywhere in the body of a woman cannot be considered
as a ground to cast doubt upon the contentions of the prosecution and the correctness of the
same.

In the case Mohd. Zuber Noor Mohammed Changwadia v. State of Gujarat 4, the court held
that in a case where absence of injury on the male organ of the accused were the victim is a
minor girl who is suffering from pain due to ruptured or broken hymen and vaginal bleeding,
even if minor contradictions are present in her statements it is not considered as of much
value and it is not a valid ground for proving the innocence of the accused who is convicted
for rape under section 375 I.P.C.

Chapter 2 : LEGAL PROVISIONS RELATED TO RAPE

1. INDIAN PENAL CODE, 1860

2
Phul Singh v. State of Haryana (AIR 1980 SC 249)
3
AIR 1989 SC 702
4
1999 Cr LJ 3419 (Guj)

10
 In the Indian Penal Code, 1860 Sections 375, 376, 376A to E deals with rape as an
offence against the human body or a woman in particular. Section 375 defines what rape
is, 376 prescribes the punishment and penalty for rape, 376A punishes the husband for
having intercourse with his wife during separation period and 376 B to D deals with the
aspect of Custodial rape.

According to Section 375, “A man is said to commit rape if he has sexual intercourse with a
woman under circumstances that fall under any of the said descriptions:-

 Against her will.

 Without her consent.
 With her consent, when her consent has been obtained by putting her or any person in
whom she is interested in fear of death or of hurt.
 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.
 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.
 With or without her consent, when she is under sixteen years of age.

And a man is said to be committing the act of rape when he does any of the following acts:

 penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or
makes her to do so with him or any other person; or
 inserts, to any extent, any object or a part of the body, not being the penis, into the vagina,
the urethra or anus of a woman or makes her to do so with him or any other person; or
 manipulates any part of the body of a woman so as to cause penetration into the vagina,
urethra, anus or any ~ of body of such woman or makes her to do so with him or any
other person; or
 applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him
or any other person.”

Analysing the essentials that constitute the act of rape, elaborate explanations can be given
for each of the mentioned requirements and statutes that support the same can be stated:

11
I. Against the will of the woman

Here the word ‘will’ denotes the mental capacity of the woman to provide free consent to the
act done by the man. Thus, when any act is committed by the man that is not accompanies by
the free consent of the woman to do such an act, it constitutes rape. It can be noted that there
is a thin line of difference between what is against a person’s will and without consent. Any
act done without the consent many not be against the will but any act done against the will
definitely be without the true consent of the person concerned.

In the case State of Uttar Pradesh v. Chottey Lal5, the Supreme Court gave explanation for
the expression ‘against her will’ and stated that it would in ordinary sense mean that the
intercourse was done by a man to a woman despite her resistance and opposition.

In State Of Himachal Pradesh vs Mango Ram6, a 3 judge bench dealt with the aspect of
giving true consent and stated that “submission of the body under the fear of terror cannot be
construed as a consented sexual act. Consent for the purpose of Section 375 requires
voluntary participation not only after the exercise of intelligence based on the knowledge of
the significance and moral quality of the act but after having fully exercised the choice
between resistance assent.”

In the case State of Punjab v. Gurmit Singh 7 a girl below the age of 16 years was abducted
by the three accused from her school and threatened to kill her if she shouted or alarmed
people. Even though she refused, she was made to drink liquor and was then raped by each
one of them in turns. Due to the threat of being killed, the girl kept quiet. After repeatedly
sexually assaulting, the accused left the girl in the place near where she was kidnapped. In the
suit the additional judge of Ludhiana acquitted all the accused disbelieving the facts stated by
the victim and due delay in FIR. In the appeal filed, it was held that the accused were liable
for rape since there was absolutely no consent or will from the part of the victim thus the act
was punishable under Section 376, IPC and constituted to be rape under Section 375 of IPC.

II. Without the consent of the woman

The essence of constitution of rape is the absence of consent. Consent means a positive and
voluntary concurrence of the ‘will’ of the woman with the act that is committed. Consent
5
2011 (2) SCC 550
6
2000 (7) SCC 224
7
1996 SCC (2) 384

12
needs to be given without force or compulsion and the woman should have the right to resist
or not give in to the act if she does not wish to indulge in the same.

In the case Rao Harnarain Singh vs. State 8, the learned judge stated that “Consent, on the
part of a woman as a defence to an allegation of a rape, requires voluntary participation, not
only after the exercise of intelligence, based on the knowledge, of the significance and moral
quality of the act, but after having freely exercised a choice between resistance and assent.”

It is also clear from various statutes and precedents that consent obtained through fraud,
misrepresentation or mistake of fact cannot be considered as true consent. This also includes
cases where a woman gives consent for sexual intercourse due to false promise given by the
man to marry her.

In the case of R v. Flattery9, the accused was held for raping a 19 year old girl. The girl had
severe attack of fits and went to the the accused’s clinic with her mother got his advice for the
treatment. The accused advised the girl to have a surgery to which she consented, and
pretending to performing it, had sexual intercourse with the girl. It was held here the consent
of the girl would not make the accused not liable as it was given under a mistake of fact.
There was a misconception from the girl’s part and free consent was given for the purpose of
operation and not for sexual intercourse.

In the case of Uday v. State of Karnataka10, the accused was in love with the prosecutrix and
promised to marry her on a future date. The girl was aware of the fact that they belonged to
different castes and that their relationship would be opposed by the family. Knowing this she
started cohabiting with the accused and became pregnant. On charging for rape under Section
375 of IPC, the Court held that the consent given by the prosecutrix for cohabitation cannot
be said to be given under a misconception of fact. The court mentioned that she had freely,
voluntarily and consciously without any form of coercion consented to have sexual
intercourse with the appellant not only because he gave the promise of marriage but because
of their love and passion. Hence the appellant was not held liable to be convicted under
Section 376, IPC.

8
1958 Cri LJ 563
9
(1877) 2 QBD 410
10
(2003) 4 SCC 46

13
III. Consent obtained by putting the woman under fear of death or hurt amounts to no
consent

Section 375(3) clearly states that the consent given by the woman should be free and out of
her own consciousness without any fear to her death or any form of hurt. When a woman
consents for sexual intercourse with a man, it should completely be out of her wanting to do
such an act and not due to the threat or fear caused to her mental state.

In the case of State of Maharashtra v. Prakash And Another 11, the Court held that in this
case where a police constable and a businessman had sexual intercourse with a woman by
beating up her husband and threatening to put him under police remand, the said act falls
under Section 375(3). Here the consent given by the woman is out of fear and does not
constitute free consent. It is not necessary that there should be actual use of force but any
such threat to use force is enough to constitute such an act.

IV. Consent provided under a misconception that the person is the husband of the
woman is not a valid consent

If the woman consents to have sexual intercourse with a man believing that person to be her
own husband truly in every sense when in the real case it is a different person or the person
has started such a relationship by hiding some true facts, in such a case this constitutes an act
of deception and will not constitute to be true consent of the woman.

In Bhupinder Singh v. Union Territory of Chandigarh 12, the complainant named Manjit
Kaur married the accused Bhupinder Singh and started cohabiting with him in Chandigarh.
She became pregnant but accused wanted the foetus to be aborted and she did it. When she
became pregnant again in 1994, she met two friends of her husband who told her that he was
already married and had children from his first wife. On confronting about this, the accused
left her stating reasons of work and did not return even after she gave birth to the child. Here,
he was held guilty of rape because the prosecutrix married the accused without any
knowledge of his first marriage. The consent for cohabitation was given under the belief that
the accused was her husband. Thus he was liable to be convicted for rape.

11
AIR 1992 SC 1275
12
(2006) 4 RCR (Cri) 692

14
In the case of State v. Deepak Dogra13,the accused got into sexual relations with the victim
fiving her the false pretext that he will marry her on a later date. He then performed an
invalid marriage to continue with the sexual relations. When the girl complained about him to
the police stating that the guy refused to really marry her and that she was pregnant with his
child, the accused was convicted for rape under Section 375 of IPC.

V. Consent given by a woman of unsound mind or under the influence of intoxication

does not amount to valid consent

Section 375(5) IPC was added through the Criminal Law (Amendment) Act of 1983 in order
to protect the interest of the woman who gives consent for sexual intercourse without
knowing the nature and consequences of the act due to reason of unsoundness of mind or
under the influence intoxication. In such cases, it is presumed that the consent of the woman
is not free and voluntary to relieve the accused from the liability of rape.

In the case of Tulshidas Kanolkar v. State of Goa 14, the accused had repeated sexual
intercourse with a woman who was incapable of knowing the consequences of such an act
done by the accused. Eventually, the girl became pregnant. The court held the accused liable
for rape under section 376 and imposed a sentence of ten years rigorous imprisonment along
with a fine of Rs. 10000.

VI. Consent of a girl under 16 (now 18) years of age is not valid under law

Sexual intercourse with a woman with or without her consent when she is below 18 years of
age amounts to rape as such consent which is given cannot be recognized under law due to
the fact that the victim would not be of the mental maturity to understand the consequences of
such an act. The age of consent was raised and updated from 16 to 18 by the Criminal Law
(Amendment) Act of 2013.

In the case of Dilip v. State of M.P15, the court stated that having sexual relations with a girl
of less than 16 years and stating that it was with her consent is no defence against the act or
liability of rape. In that case showing evidence of frequent sexual intercourse and no other
signs of rape would not be useful as consent of a minor has no value under law.

13
1988 (36) BLJR 678
14
2003 (8) SCC 590
15
1987 Cri. L. J. 212

15
Coming to Section 376 of IPC, it sates that any person who commits rape would be punished
with imprisonment for either a term not less than seven years or life or may extend to ten
years and shall also be liable to pay fine. The section also explains in detail the aggravated
conditions of rape which includes such acts done by public servants, police officers,
management or staff of jail, rape on a pregnant woman, rape of a girl under the age of 12 and
gang rape will be punished with rigorous imprisonment for not less than ten years and fine
and may extend up to life imprisonment.

Section 376A of IPC deals with rape committed towards a woman and thereby causing her
death or her being in a persistent vegetative state due to the act done by the accused. If
convicted the person shall be punished with rigorous imprisonment for a term which will not
be less than twenty years and extend to life imprisonment or with death penalty.

In the case State (Govt Of Nct Of Delhi) vs Ramtej16 the accused was charged under Section
376A and also Section 302 of IPC as it was a grave offence in which the death of the woman
was caused due to the combined effect of shock and strangulation which lead to severe blood
loss as heavy wooden objects were inserted into the body through the woman’s sexual parts.

Section 376B of IPC deals with the case where a man has sexual intercourse with wife during
separation. In such a scenario the man can be liable for punishment for a period of not less
than two years and it may extend up to seven years in certain cases and will also be charged
with fine.

Section 376C mentions Sexual intercourse done by a person in authority i.e. in a fiduciary
relationship, is a public servant, jail superintendent or staff, hospital staff which includes
seducing the woman to have sexual relations with the man which does not amount to rape
shall be punished with rigorous imprisonment for a term which is not be less than six years
and may extend up to a period of ten years and shall also be liable to pay fine.

Section 376D states the punishment for gang rape in the instance where a woman is raped by
one or more persons which constitute a group or acting with a common intention each of the
convicted persons shall be punished with rigorous imprisonment for a term not less than
twenty years and may extend to life imprisonment and would be accompanied with fine and
the fine imposed shall be just and reasonable to able to meet the medical expenses and
rehabilitation of the victim and the said amount would be paid to the victim.
16
(2003) 11 SCC 367

16
Section 376E explains the punishment for repeated offenders and such persons shall be
punished with imprisonment for life or with death.

Section 376(2) deals with aggravated sexual offences which includes rape committed by a
police officer, public servant, manager or staff of jail, management or staff of hospital, rape
on a pregnant woman, rape on a child less than 12 years of age and gang rape. In case of such
offences the convicted person shall be shall be punished with rigorous imprisonment for a
term not less than ten years but which may extend up to life imprisonment and will be liable
to pay fine for the same.

The provisions and punishments regarding rape are well defined in the Indian Penal Code but
the Code dates back to the 19th century and even though the provisions were amended
multiple times, the laws related to rape can be seen as inadequate considering many aspects
such as the increase in the number of rape cases and the aggravation regarding the same.
Rape being an evil in every way that affects the human mind and societal peace needs to have
stricter laws and provisions in order to lessen and eventually eradicate the same.

Chapter 3 : EVOLUTION OF ANTI-RAPE LAWS IN INDIA

The Indian Penal Code which came into force in he year 1860 has gone through a series of
amendments in order to clear the vagueness and ambiguities in the various provisions stated
in the code along with taking into consideration the increase in the crime rate and the
aggravation of the offences that take place in the due course of time. With protests and mass
agitation has the laws in India related to crime and related aspects gone through visible
changes especially in the recent technological age where public agitation transfers through
social and online media too. When the Indian Penal Code was enforced in the year 1860,
Section 375 to Section 376E of IPC referred to sexual offenses and the provision in the code
defined rape as sex without consent and with consent but given due to the fear of death or
false pretences. The code also defined statutory rape as sex that is committed towards a
woman 16 years of age. Rape against males were nowhere mentioned in the Code except in
Section 377 which deals with Unnatural Offences. But in Section 377, which is now
amended, criminalized any person who committed unnatural acts. The whole concept of
marital rape was not defined or prescribed with punishment in the IPC which is absent even
in the modern present time. The minimum punishment for rape was very low i.e. up to a

17
period of two years and the maximum punishment that could be given was life imprisonment.
Due to all these inadequacies in the code, there was a need to amend the outline of the Indian
Penal Code. The major amendments and changes that were made occurred in the following
sequential order:

1. The Criminal Law (Second Amendment) of 1983

This amendment came up when the infamous case commonly known as Mathura Rape Case
took place. In this case i.e. Tukaram and Another v. State of Maharashtra 17, Mathura was a
young Adivasi orphan girl who lived with her brother Gama. She worked as a labourer at
Nushi’s house. At that time, she developed a sexual relationship with Ashok, Nushi’s sister’s
son and then they decided to get married. Gama complained on March 26, 1975 that Mathura
was kidnapped. After the statements of all the required persons were recorded the first
appellant Ganpat asked Mathura to wait inside the police station. He then took her up to the
washroom and raped her in spite of her resistance. After that the second appellant Tukaram
came and tried to assault her private parts. He tried to rape her but could not do so as he was
heavily intoxicated. Mathura later narrated this incident to her family and friends. When
medical examination was conducted it was stated that Mathura was between the age of 14-16
years and her hymen had only old ruptures but her body did not have any injuries. After a
long legal battle, The Supreme Court acquitted the appellants in 1979. There were huge
controversies and protests regarding the same due to the sexist remarks and improper
judgement which was given. The Sessions Judge acquitted the accused and termed the
incident as not a case of rape but of consensual sexual intercourse between the parties. The
sexism and harshness is clear as the judge said implied that Mathura was habitual to sex and
claimed that she herself might have invited Ganpat to satisfy her sexual thirst and thus her
consent given by her was voluntary and without force. The semen found on the accused was
claimed as nightly discharge which clearly denotes the injustice prevailing in the judgement.
The Bombay High Court later made a distinction between consent and passive submission
and stated that Mathura did not know the accused earlier so there is no chance that she would
give sexual advances to them. But the Supreme Court in the later appeal reversed the
judgement of the Bombay High Court and stated that the judgement of the Sessions Court
was true and fair in every sense as the victim did not raise an alarm and there were no injuries
on her body from the act. Even though Section 375 clearly states that consent of a girl below
the age of 16 is invalid, this clause was not taken into consideration at all.
17
1979 SCR (1) 810

18
This case gave rise to agitation and resentment in the society. A law that better protected
human rights and dignity had to come up. After this case, the Criminal Law Amendment Act
was passed in 1983. This act amended: Section 114(A) of the Indian Evidence Act that stated
that if the victim does not consent to sexual intercourse then the Court would presume that
she did not consent to such an act. Section 376 of the IPC was amended which made
custodial rape an offense punishable with not less than 7 years imprisonment and the burden
of proof was shifter from the victim to the offender once the act of sexual intercourse is
established. The amendment also created a ban on the publication of victims’ identities and
held that rape trials must be held as in-camera proceedings only.

2. Amendment of Indian Evidence Act in 2002

This amendment came up due to a PIL filed by an NGO known as Sakshi in the case Sakshi
v. Union of India18 in which it was pointed out that women didn’t feel comfortable about
reporting rape because of the process of rape trials were held in such a manner that it would
humiliate integrity and personal space of the victim rather than properly consider them as
someone who requires care and protection. The Supreme Court asked the Law Commission
to review the rape laws and recommend changes. It was found that in Section 155 (4) of the
Indian Evidence Act 2002, the defence lawyer could discredit a victim’s testimony and cross
question her by proving that she was of immoral character. This also included questioning her
about past sexual acts. This deterred rape victims from filing a case under the court of law.
So, this clause was amended in 2002 and the amendment, the cross-examination of a rape
victim was prohibited and the two finger test was only to be done by providing prior and
correct information as to why and how it is done. This case also tried to define as to what
penetration is and what can constitute penetration, the parts in which penetration can be done
etc.

3. Protection of Children from Sexual Offences (POCSO) Act, 2012

Various data sources indicated that there was a 336% increase in child rape cases in our
country from 2001 to 2011. The National Crime Record Bureau statistics convey that 48,338
child rape cases were recorded during the said period of time. In 2016, 21% of the total
39,068 cases of rape were against minor girls below the age of 16 years. 19 This alarming
increase led to the requirement of a special legal procedure for child victims of sexual
18
AIR 2004 SC 3566
19
http://ncrb.gov.in/StatPublications/CII/CII2016/pdfs/Crime%20Statistics%20-%202016.pdf

19
offences. The major downfall in IPC regarding the non-distinguishing factor between an adult
and a child as only statutory rape is mentioned under the IPC was cleared out with the
enactment of this act. Now the police has the responsibility to make sure the child received
protection from a shelter home and that emergency medical treatment should be given to the
child. Special courts were set up to conduct the trial in-camera and the identity of the child
would not be disclosed and conducting the trial in the most child friendly manner. The Act
stated such cases to be fast-tracked within a year and reporting of such cases is made
mandatory. The POCSO Act is gender-neutral and protects male children also which was a
major loophole in the Indian Penal Code. It also recognized other forms of penetration apart
from penis-vaginal penetration. It considers the abetment of child sexual abuse as an offence
and includes non-penetrative assault, sexual harassment and child pornography.

4. Criminal Law (Amendment) Act, 2013

The famous Nirbhaya Gang Rape Case in which a 23 year old physiotherapy student was
mercilessly, inhumanly gang raped and killed which gave rise to nationwide protests against
the rape laws and its amendment led to the Criminal Law Amendment Act, 2013. Through
this case i.e. Mukesh & Anr vs State For Nct Of Delhi & Ors 20 new offences such as
stalking, acid attacks, and voyeurism were added into the definition of rape. Even giving the
threat of rape is now a crime under the Indian Penal Code. The minimum prison sentence was
shifted from seven years to ten years. In such cases that led to the death of the victim or the
victim being in a vegetative state, the minimum sentence was increased to 20 years. This was
the first time that the aspect of vegetative state was discussed since the landmark judgement
in Aruna Shanbaug case. Through this amendment, juvenile accused from age 16-18 could
also be brought under trial with the provisions of IPC in exceptional cases considering the
fact that one of the accused was a juvenile of 17 years. This amendment reiterated that the
character of the victim is of completely no relevance in rape cases.

5. Criminal Law (Amendment) Bill, 2018

In January 2018, an 8-year-old young girl named Asifa Bano was gang raped and killed in the
district of Kathua of Jammu and Kashmir. The prime convict Sanji Ram was the priest of the
temple at that place. This case led to national outrage and agitation, especially because the
20
(2017) 6 SCC 1

20
crime was committed against a child and also because it took place in a temple and was
committed by a priest. It became an issue along the Hindu-Muslim lines. This change or
amendment was mainly made to POSCO Act since the case was against a child. Through this
amendment, the provisions in IPC, 1860 is increased as the minimum punishment for rape of
women from seven years to ten years. Rape and gang rape of girls below the age of 12 years
will be punished with minimum rigorous imprisonment of twenty years and is extendable to
life imprisonment or with death penalty. Rape of girls below the age of 16 years is punishable
with imprisonment of twenty years or life imprisonment.

Chapter 4 : ANALYZING RAPE LAWS FROM DIFFERENT

DIMENSIONS

In order to properly understand the circumstances and implications of laws and statues related
to rape in India, it is important to analyse the rape laws through various perspectives and not
just from one definite angle. Rape Laws need to be analysed from the point of view of the
society, legal system, victims and also aspects like gender equality in the laws need to be
studied in detail.

Rape Laws and Judicial decisions: Changes in interpretation by the courts

The courts have come a long way when it comes to pronouncing judgements related to rape
and the aspect of what is aggravated and severe has changed with the due course of time.
Gender Equality and rights of women have also affected the nature of judgements. In order to
understand this The Mathura Rape Case21 and the sexist judgement that was pronounced is
to be taken into consideration. From there, the courts and their way of pronouncing
judgements have come a long way.

Similar judgements were pronounced in cases such as Mohd. Habib v. State22, the Delhi High
Court acquitted the accused for the rape of a woman named as Aruna Kumari. The court
again stated the reason as marks of injury on the genital parts of the accused to lack of
resistance by the victim. The facts that Aruna was between 7-10 years, her hymen was

21
Supra 17
22
1989 Cri LJ 137

21
ruptured, bite marks were present on her body and there was an eyewitness to this incident.
All these were also considered not applicable by the court.

But the court has interpreted the rape laws in a better manner and has awarded great
compensation to victims of rape cases considering their mental situation, injury caused etc.

For example in the case of State of Maharashtra v. Madhukar N. Mardikar 23, the court held
that "the unchastity of a woman does not make her open to any and every person to violate
her person as and when he wishes. She is entitled to protect her person if there is an attempt
to violate her person against her wish. She is equally entitled to the protection of law.
Therefore merely because she is of easy virtue, her evidence cannot be thrown overboard."

In the case Chairman, Railway Board v. Chandrima Das 24, an Advocate of the Calcutta
High Court filed a petition under Article.226 of the Constitution against the some railway
authorities of the eastern railway in which he claimed compensation for the victim Smt.
Hanufa Khatoon, a Bangladesh national who was raped at the Howrah Railway Station by the
railway security men. Here the High Court convicted the accused persons under charges for
gang rape and awarded Rs.10 lakhs as compensation.

Though many judgements have come up in which the court has considered the plight of the
victim and her conditions, still there are many areas where new laws should come up as these
are either not properly defined or remain undefined in the Indian Penal Code and related
provisions. For instance, Marital Rape has nowhere in the Indian Penal Code or any other
provision considered to be an offence. Marital rape is something that is similar to the ordinary
rape as no one has the right to have sexual relations with a woman without her true consent.

Gender Equality and Rape Laws in India

It can, without any doubt be stated that the rape laws in India are gender biased in every
sense. Section 375 only defines rape against a woman and does not deal with the situation
where a man is raped. During the time of enactment of the Indian Penal Code, it is true that
the status of women were below that of men and the whole idea of women taking power over
men was something that could never happen. But now with advancement in the social
conditions and dignity of women along with campaigns and development in the equality of
genders, the idea that only men can sexually harass or rape women is not completely right.
23
(1991) 1 SCC 57
24
AIR, 2000 SC 988

22
Women, through the gender inequality of laws can also be in a position to exploit men by
giving false allegations, charges etc and also in rare cases by physically assaulting them
knowing that there are no particular provisions that define rape against men in India. The
#MenToo movement that arose in our country is a true example of how the gender inequal
laws can be exploited by women by filing false suits and alleging false claims against men.
Like women, due to such allegations men can also face societal pressure and social
harassment due to such allegations.

The rape of males in India is commonly underreported due to the inadequacy of laws and
societal non acceptance. Many national and international figures are against the whole idea of
sexual harassment against men. For example, International human rights lawyer and activist
Vrinda Grover was quoted in an article: "There are no instances of women raping men. I
don't think men are facing serious sexual violence as women. Consider the brutality and
intensity of sexual violence against women.” 25 But the fact that there are cases that are
reported on a regular basis regarding the false accusations made against men and though rare,
there are instances of women sexually harassing men. It is to be noted that in the POCSO
cases that have come up in the recent times, there are a large number of cases where women
sexually abuse male children. Statistics through the Delhi-based Centre for Civil Society
found that approximately 18% of Indian adult men surveyed reported being coerced or forced
to have sex. Of those, 16% claimed a female perpetrator and 2% claimed a male perpetrator. 26
So like the children in India are protected regardless of their gender, men are also to be
protected from the mental and physical abuse that they face due to various contentions and
acts. Just because the society provides higher importance to the dignity and virginity factor of
women, protection of men cannot be denied in any case as it affects the gender equality and
safeguard provided to the citizens of India.

Rape Laws and the Society

Rape in the present day society has become a common phenomenon that we see in everyday
newspapers, television etc. The society has come a long way in accepting the rape victim and
fighting for their justice. We have seen a number of real and online protests in various

25
https://timesofindia.indiatimes.com/india/Activists-oppose-making-rape-gender-
neutral/articleshow/15049606.cms
26
https://ccs.in/indias-law-should-recognise-men-can-be-raped-too

23
heinous cases with hashtags and slogans such as #JusticeForAsifa , #JusticeForJisha etc.
From the widespread protests that we have seen in Mathura Rape Case 27 against the sexist
remarks and judgement given by the Sessions as well as Supreme Court to the candle light
marches and the large public protests in the Nirbhaya Gang Rape case 28 to the agitation and
anger in the Asifa Bano/Kathua case, the society and people’s fight for bringing changes in
the existing laws have come a long way. The society plays a huge role in the rehabilitation of
the victims and their future living conditions. The Indian Society still considers rape as
something which takes away the purity of a woman and many a times the woman is criticized
for the way of dressing, lifestyle etc. With the due course of time, all these have to come to an
end and males have to be educated on how to treat a woman from a tender age so that the
level of rape decreases in the society.

CONCLUSION AND SUGGESTIONS

Rape is an evil that is sought to be eradicated in every form as the dignity and consent of a
person is of utmost importance when it comes to human lives. Indian Legal System, though
containing a large number of provisions and statutes still have many loopholes and
inadequacies when it comes to providing justice for the rape victims. Even though many
amendments have been made in the Indian Penal Code during the years, there are factors that
need to change or be redefined according to the changing scenario of criminology and
criminal aspects of the convicts. Other aspects such as gender neutral laws to be enacted must
also be taken into consideration. From the detailed analysis of the rape laws in India from the
perspective of different groups, it can be noted that the courts have come a long way in
pronouncing judgements considering the state of the victim and the society has also
developed in a positive manner to a large extend in fighting for obtaining justice for the
victims of rape cases. Factors such as avoidance, blaming and shaming of the victim still
exist in the society but there is also positive development in the condition and mental makeup
of the people in the society. The Indian Laws be made stricter along with flexibility in the
minds of people regarding issues like rape should eventually lead to the decrease in the rape
rate and increase in the safety and security of the women in our country.

The suggestions that can be stated after completing this research paper is as follows:
27
Supra 17
28
Supra 20

24
 When it comes to rigorous punishment for rape cases and other offences, the government
and legal systems should make sure that the punishment is rigorous enough and not so
smooth like how it is in the present scenario.

 Rape laws should also consider the protection of men and not just women by making the
rape laws gender neutral. Rape laws need not only side women just because the number
of rape cases against women are more compared to that of men.

 The aspect of ‘rarest of the rare’ should not be considered to a great extend when
providing death penalty because the intensity of crimes are increasing case after case and
soon enough brutal cases would not come under the phrase ‘rarest of the rare’.

 Trials in cases of rape or sexual harassment should be held in a more faster time period as
the importance and public attention to such cases would reduce if the trial takes a long
period to get completed.

25