SEXUAL OFFENCES AND LAWS IN INDIA
Sexual offence is an act in which a person intentionally sexually touches another person without that person’s consent or physically forces a person to engage in a sexual act against their will. Sexual offences as we all know are basically the offence related to physically harm the private or the sexual parts of a women these offences includes offences like rape, child abuse, sexual harassment etc.
This article will wholly cover the ambit of the provisions related to sexual offences under the Indian penal code, 1860. In this article the main focus will be on the provisions related and the way these provisions have been interpreted by the courts along with the need to reform some provisions given under IPC. This article is gender neutral and not biased only towards women because the law is equal for both Men & Women.
Rape in India is now a common crime than murder. If we see in terms of crime rate in India stand at 2.2 in terms of murder while stands at 5.2 in terms of rape according to the national crime record bureau(NCIB) till 2017 even if we exclude the other sexual offences like acid attacks, sexual harassment, practice of spying of people involved in intimate behaviours disrobe a women etc. Rape, unlawful sexual activity, most often involving sexual intercourse against the will of the victim through force or threat of force or with an individual who is incapable of giving legal consent because of minor status, mental illness, mental deficiency, intoxication, unconsciousness or deception. In many jurisdiction the crime of rape has been subsumed under that of sexual assault.
Definition of the term RAPE under SECTION 375 of IPC if defined as “A man is said to commit a rape if he penetrates his anus into any extent into vagina, mouth, urethra of anus of a woman or makes her to do so with him or any other person” also this definition is further subjected to the several circumstances like if the act is done against her will or without her consent or if the consent is obtained when the girl which is not able to communicate and the most important when the act is done with or without the consent of girl below 18 years of age. After the Nirbhaya case the age of consent was extended from 16yrs to 18yrs because the court believed that even at the age of 16, the girl is capable of giving the consent and the accused is also capable of the act which he is doing and therefore he should not be prosecuted under the juvenile Act.
As started above, there are basically seven essential ingredients to constitute a rape-
1) Against her will;
2) Without her consent;
‘AGAINST HER WILL’
The term ‘WILL’ basically implies the desire of whether to do any act or not. However, both these expressions ‘Against the will ’ and without the consent sounds similar but there is a difference between them because an act is done against the will is obviously without consent but its converse is not true. The concept of against the will was first explained by the court in the case of chotelal vs state of uttar Pradesh, where it was helped that against her will means that the sexual intercourse has been done despite the women has resisted and has opposed to the intercourse.
‘WITHOUT HER CONSENT’
The term consent basically means the voluntary agreement by the words gesture direct or indirect form, a verbal or non verbal form of communication to engage herself is sexual intercourse. It is the most essential element to constitute rape because consensual intercourse does not amount to rape, and obviously if the intercourse has been done by the consent, then it defeats all the provisions related to sexual offences under IPC. Also there is no obligation on the man to prove that whether the consent was there or not at the time of the intercourse the burden of proof is on the women to proof for the consent.
‘CONSENT OBTAINED UNDER FEAR OF DEATH PROF HURT’
SECTION 375(c) of the IPC asserts that consent of the women in order to exonerate the accused of the charge of rape must be given freely and voluntarily without any fear of death or injury. In such a case the consent obtained will not be valid consents obtained will not be valid consents. The scope of the Clause has been widened by the insertion of the words or any person in whom she is interested after the words putting her in fear of death or hurt clause in the case of prakash vs state of Maharashtra, where there was sexual intercourse with the wife by the businessman and policeman where they obtained the consent because they started beating her husband. The court held them liable and said that the actual force is not necessary but the threat to use force sufficient to obtain the consent for intercourse.
‘CONSENT OBTAINED BY FRAUD ’
As incorporated in section 375(4) of the IPC that consent given by a women to a person for intercourse believing the person for intercourse believing the person to be her husband whereas in fact, he is not her husband is no consent in law. In such a situation the person known the fact of deception and pretends to be the husband of the woman. These cases are basically related to the bigamy which means that at the time of marriage, the accused has another spouse living and the consent is obtained by making believe to his wife that he is unmarried to obtain the consent for sexual intercourse with the victim. Its applicability is interpreted by the court in the case of bhupinder singh vs uniom territory of Chandigarh Where the complainant manjit kaur married the accused bhupinder singh who shae had met through work, in1990 and they engaged in the intimate relations. Later she became pregnant but accused made her abortion in 1991. When she was pregnant again in 1994, she met her husbands friends who told her that he’s already married and had children from her first wife. On being confronted her husband left on the pretence of work and did not turn up even after she gave birth to a daughter she made a complaint and he was held guilty of rape because prosecutrix married accused without knowledge of her first marriage. The consent for cohabitation was given under the belie that the accused was her husband, it was also held that delay in lodging complaint by the prosecutrix couldn’t in any event wash away the offence because there was no consent therefore the supreme court refused to interfere with the order of conviction passed by the high court.
PUNISHMENT OF RAPE
The provision for rape is started under SECTION 376 of the IPC where the rigorous imprisonment for not less than 10 yrs is given which can be extended up to imprisonment for life. Also some entities are specified separately namely public servant police officers members of armed forces management of staff of jail or if the rape is committed repeatedly on the same women are also subjected to liable for the rigorous imprisonment for not less than 10 yrs and can be extended up to imprisonment for life and will also be liable for fine for the same. Also if the rape is committed to a woman who is under the age of twelve he will be liable for the imprisonment which shall not be less than 20 yrs and can be extended for life.
SECTION 376AB of IPC the legislation have made further and separate provision for the sexual intercourse by a person in authority which basically means if there is a fiduciary relationship between men and women meaning thereby where one person is in a position to dominate the other like the relationship between a doctor and a patient pr by the manager of a jail of a custody where a man who has committed the offence is liable to the rigorous imprisonment for not less than 5yrs which can extended up to 10 yrs and is incorporate under SECTION 376B of IPC this provision was made to restrict the sexual abuse to a women by the patient and the patient can be raised against their acts to the patients, therefore this provision limits the sexual abuse especially by the doctors. Also after the nirbhaya case 2012 some provisions are modifies and some new provisions were added like earlier the punishment for rape was earlier 7 yrs of imprisonment up to 3 yrs was made for the same under SECTION 354D of the IPC the imprisonment for the offence of gang rape was increased from not less than 10 yrs to not less than 20 yrs under SECTION 376D of IPC also earlier there was no provision made for the unwelcome physical contact words or gestures demand or request for several favours showing pornography Against the will of a women or making sexual remarks but now all these activities are recognized as an offence and laws are made under IPC.
Rape is one of the most serious offence which is being committed & is punishable in India under Indian penal code, 1860. Many women lose their health. Husband, families & other support networks as a result of rape