What a rape crime is?
Section 375 of Indian penal code define rape as-
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 the six following descriptions:
(First) — Against her will.
(Secondly) —Without her consent.
(Thirdly) — 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.
(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.
(Fifthly) — 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.
(Sixthly) — With or without her consent, when she is under sixteen years of age. Explanation—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
(Exception) —Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
Firstly, in 2017 the Supreme Court ruled that since the age of consent is eighteen, any sexual intercourse by a man with his own wife aged between fifteen to eighteen years, Section 375 exception notwithstanding, is indeed rape. Secondly, the Section 375 exception still stands for victims of marital rape above eighteen years unless the couple has legally separated. This is understandably one of the most contentious parts of the existing legal framework.
Section 90 in The Indian Penal Code
90. Consent known to be given under fear or misconception—A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception;
Over 3.7 lakh cases of crime against women
- Seventy-seven rape cases were reported across India on an average every day in 2020, totalling 28,046 such incidents during the year.
- Overall, 3,71,503 cases of crime against women were reported across the country last year, showing a decline of 8.3 per cent as 4,05,326 cases were registered in 2019, the NCRB stated.
- Of the total cases of crimes against women in 2020, there were 28,046 incidents of rape involving 28,153 victims, according to the NCRB data for the year, which witnessed COVID-19 outbreak and pandemic-induced lockdowns.
- As per the NCRB data, Rajasthan reported the highest number of rapes (5,310) in India in 2020, followed by Uttar Pradesh with 2,769 cases, Madhya Pradesh (2,339 cases), and Maharashtra (2,061 cases).
The crime rate registered per lakh women population is 56.5 in 2020 in comparison with 62.3 in 2019.
Under present laws minors, aged below eighteen years, are protected under the Protection of Children from Sexual Offences Act (POCSO) of 2012. The punishment for the rape of a minor is described clearly in Section 4 & 6 of the POCSO Act, read with Section 376 of the IPC which describes the punishment for rape. Furthermore, in 2018, Section 376 of the IPC was amended by the Criminal Law Ordinance of 2018 to impose the death penalty for the rape of a minor below twelve years of age, among other changes.
Here we look at some of the brutal rape cases:
Hathras gang-rape and murder
The incident took place on September 14, 2020, when a 19-year-old woman was allegedly gang-raped and brutally assaulted by four upper-caste men while her family members were busy working on the fields. The family claimed that four to five people attacked her from behind, gagged her with her dupatta and dragged her to a bajra field where they gang-raped her.
A 22-year-old man in the Kalahandi district of Odisha has been arrested by police for allegedly raping his three-year-old niece. The accused is a resident of Maskapadar village in the Lanjigarh police station area. He lured the child with sweets and toys on Sunday and took her to ‘Jhami Yatra’ (a local festival), a police officer said.
Later, he allegedly raped her at a deserted place and dropped her home. The child’s mother, on finding out that she was bleeding, rushed her to a community health centre.
Banda rape case
An eight-year-old girl was allegedly raped by an elderly man in a village in Uttar Pradesh. The accused, identified as Jagdish Pal, 70, was arrested later. The incident took place in the Baberu area in the Banda district when the girl was playing near her house.According to the police, the girl has a vision problem and cannot see clearly.
Latest marital rape hearings in Delhi HC
striking down Exception 2 amounts to creation of a new offence, should we not touch it? Delhi High Court
The Court asked Advocate Karuna Nundy, appearing for the petitioners, to check precedents in which the courts have struck down a provision even if it amounted to a creation of a new offence.
Marital Rape issue should be kept outside jurisdiction of court: J Sai Deepak to Delhi High Court
Striking down Exception 2 to Section 375 enlarges the scope of the existing offence, thereby creating a new species of offence when the legislature has taken a position to the contrary, he argued.
Expectation of sex in marriage cannot result in forceful sexual relations: Rebecca John
Senior Advocate and Amicus Curiae said that if the Court was to strike down Exception 2 in Section 375, then 376B of IPC and 198B of the CrPC would have to go too. If marital rape is criminalised, charges of attempt to rape will also be attracted against a husband, Senior Advocate Rebecca John told the Delhi High Court on Friday [RIT Foundation v Union of India].
Criminalising marital rape will lead to creation of new offence: Justice C Hari Shankar expresses prima facie view
Justice Rajiv Shakdher, however, said that he will not express his prima facie view on the marital rape case at the moment.
Will frame a ‘considered and consultative view’: Central government to Delhi High Court
In 2017, the Union government had opposed the criminalisation of marital rape on the grounds that it would destabilise the institution of marriage and become a tool for harassing husbands.
Nature of relationship cannot put same offence on different pedestal: Delhi High Court
The Court asked why a man forcing himself on his wife will not violate her dignity when the same act violates the dignity and rights of an unmarried woman. The Delhi High Court on Tuesday questioned the rationale in discriminating between married and unmarried women when it comes to non-consensual sex and the impact it has on their dignity [RIT Foundation v The Union of India].
Married parties may have right to expect sexual relationship, unmarried couples do not: Delhi High Court remarks
This difference, Justice C Hari Shankar said, may have a part to play in the exception provided under Section 375 IPC which rules out marital rape as an offence. The Delhi High Court on Monday observed that there is a qualitative difference between a married and an unmarried couple, since after marriage, each party has an expectation or even a legal right of conjugal relations [RIT Foundation v. Union of India and Ors].
Delhi High Court dismisses plea to declare marital rape as ground for divorce. The Delhi High Court has dismissed a petition seeking a direction to the Central Government to declare marital rape as a ground for divorce.