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Published : October 31, 2011 | Author : manjeetsahu381
Category : Criminal law | Total Views : 23736 | Unrated

  
manjeetsahu381
Manjeet Kumar Sahu 3rd Year, B.A LL.B(Hons.) University of Petroleum and Energy Studies
 

Change in definition of “Rape” in India

India is a country where women hold high status in the society but still we do not have strict measures to protect them. We have various laws strictly framed to protect their life but seemed to have many loophole. Rape is considered as a most heinous crime done on women and statistic states that it is quite prone in India. We have various laws to regulate such heinous crime but when it comes on the implementation part, we lack somewhere or we need to make an attempt to have a hold upon it. Thus, abruptly leads in interpreting the crime in diversified way which sometimes even leads to miscarriage of justice. The change in definition of rape is due to the liberal interpretation of the term. It is the need of the hour and we have to move according to the present scenario. Legislature and Judiciary are trying to curb this issue defining these term in a more concrete manner.

India is the epicentre of most versatile culture and spirituality. Here, women holds  high status in the society and is considered to be “Lakshmi”. Particularly, In India Personal Laws always conflicts with the other codified laws and it is the personal laws which prevails but with westernization and intuition among people it has changed .The status quo of the legal system need to be refurbished and many liberals law are turning out their shape for this purpose.

Rape is the most heinous offence committed on a woman. It is worse than a murder. Though, it is objectionable to state rape as a crime against whole social environment but in some part of the world ,it is considered that even women can commit rape depending upon the definition rape in those regions . It is restricted only to the crime against matriarchal social environment. Rape at present stage is the infringement of women right and liberty. Rape is, for many feminist, the ultimate expression of patriarchal order, a crime that epitomizes women’s oppressed status by proclaiming in the loudest possible voice,the most degrading truth about women that a hostile world has to offer.

Of all crimes committed against a person, rape is the one that leaves a person feeling the most violated. A rape victim is often left with the feeling that that a part of them has been torn apart. Because the feeling is still with them, the victim may have a sense that the crime is continuously occurring. To use another person's body and ignore the soul the resides within is the most egregious crime that one person can commit against another.

In India,it is defined as intentional and unlawful sexual intercourse with a woman without her consent. The essential elements of this definition under Section 375 of the Indian Penal Code are‘sexual intercourse with a woman’ and the absence of consent. The Section 375 made it clear that intercourse would account to rape only during the absence of the woman’s consent. But the Delhi high court verdict seems to modify the definition. This will come as a sigh of relief to the women across the country. But its definition has taken a broader shape with the commission of the crime.

Section 375, the provision of rape in the Indian Penal Code (IPC), has echoing very archaic sentiments, mentioned as its exception clause- “Sexual intercourse by man with his own wife, the wife not being under 15 years of age, is not rape.” Section 376 of IPC provides punishment for rape. According to the section, the rapist should be punished with imprisonment of either description for a term which shall not be less than 7 years but which may extend to life or for a term extending up to 10 years and shall also be liable to fine unless the woman raped is his own wife, and is not under 12 years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to 2 years with fine or with both.

Earlier Developments
In TukaRam v. State of Maharashtra, In March 1972, a 16-year-old tribal girl was raped by two policemen in the compound of Desai Ganj police chowky in Chandrapur district of Maharashtra. Her relatives, who had come to register a complaint, were patiently waiting outside even as this heinous act was being perpetrated in the police station. When her relatives and the crowd threatened to burn the police chowky down, the two guilty policemen, Ganpat and Tukaram, reluctantly agreed to file a panchnama. At the Sessions Court, Mathura was accused of being a “liar” and that since she was “habituated to sexual intercourse”, her consent was given. The Nagpur bench of the Bombay High Court set aside the judgment holding that that passive submission due to fear induced by serious threats could not be construed as willing sexual intercourse. However, the decision of the Supreme Court remains a blot on its record to this day. The rationale for acquittal was that Mathura had not raised an alarm and there were no visible marks of injury on her body. The judgment did not distinguish between consent and forcible submission.

In Mohd.Habib Vs State, the Delhi High Court allowed a rapist to go scot-free merely because there were no marks of injury on his penis- which the High Court presumed was a indication of no resistance. The most important facts such as the age of the victim (being seven years) and that she had suffered a ruptured hymen and the bite marks on her body were not considered by the High Court. Even the eye- witnesses who witnessed this ghastly act, could not sway the High Court’s judgment.

In State of Punjab Vs. Gurmit Singh, the Supreme Court has advised the lower judiciary, that even if the victim girl is shown to be habituated to sex, the Court should not describe her to be of loose character.

In all these three cases, Judges have tried to interpret the situation as to when such heinous crime took place.It is necessary to analyse the situation because, we cannot set aside the Mensrea while discussing any crime.I found that though Judges took their time in deciding the cases but was intoto based on the interpretation of the fact as to when and what were the consequenses during which the commission took place and habitual to sexual intercourse is no more an excuse to avoid one’s guilty.


Recent Development

In Chairman, Railway Board Vs. Chandrima Das, a practicing Advocate of the Calcutta High Court filed a petition under Article.226 of the Constitution of India against the various railway authorities of the eastern railway claiming compensation for the victim (Smt. Hanufa Khatoon)- a Bangladesh national- who was raped at the Howrah Station, by the railway security men. The High Court awarded Rs.10 lacs as compensation.

This case highlighted the adverse effect of gang rape which was performed as a sovereign function and hence, was awarded compensation.

In Sakshi v. Union of India, the judges sought refuge behind the strict interpretation of penal statutes and the doctrine of state decisis - a view that any alteration [in this case, of the definition of rape] would result in chaos and confusion, it directed the Law Commission of India to respond to the issues raised in the petition. The Law Commission, under the chairmanship of Justice P. Jeevan Reddy, responded by saying that the 156th Law Commission Report had dealt with these issues. The Supreme Court, however, agreed with Sakshi that the 156th Report did not deal with the precise issues raised in the writ petition. In August 1999, it directed the Law Commission to look into these issues afresh.

After detailed consultations with the organisations, the Law Commission released its 172nd Report on the Review of Rape Laws, in 2000. The Law Commission recommended changing the focus from rape to `sexual assault', the definition of which goes beyond penile penetration to include penetration by any part of the body and objects, taking into account cunnilingus and fellatio.

The 172nd Law Commission report had made the following recommendations for substantial change in the law with regard to rape.

1. ‘Rape’ should be replaced by the term ‘sexual assault’.
2. ‘Sexual intercourse as contained in section 375 of IPC should include all forms of penetration such as penile/vaginal, penile/oral, finger/vaginal, finger/anal and object/vaginal.
3. In the light of Sakshi v. Union of India and Others ‘sexual assault on any part of the body should be construed as rape.
4. Rape laws should be made gender neutral as custodial rape of young boys has been neglected by law.
5. A new offence, namely section 376E with the title ‘unlawful sexual conduct’ should be created.
6.Section 509 of the IPC was also sought to be amended, providing higher punishment where the offence set out in the said section is committed with sexual intent.
7. Marital rape: explanation (2) of section 375 of IPC should be deleted. Forced sexual intercourse by a husband with his wife should be treated equally as an offence just as any physical violence by a husband against the wife is treated as an offence. On the same reasoning, section 376 A was to be deleted.
8. Under the Indian Evidence Act (IEA), when alleged that a victim consented to the sexual act and it is denied, the court shall presume it to be so.

In recent case State of U.P. v. Chhotey Lal, Highlighting the difference between ‘will’ and ‘consent’, the court said that a nod for sexual relations obtained by a man on the false pretext would not amount to a ‘legal or valid’ consent to save him from punishment for rape. Even if there were mutual consent, if the consent is based on a false pretext made by the man then the consent would stand as null and void and the intercourse be termed as rape.

Another aspect for defining the concept of rape is compromise, it is always noticed in india that Society has a faith on compromise even in crime. This sometimes adversely affect the judgment of the commission of the crime. There have been a number of past cases where the Supreme Court has reversed High Court decisions reducing sentences under this provision for not giving suitable reasons.

Enhanced sentences were introduced by amendment in 1983, whereby the Legislature indicated that it considers aggravated rape (including gang rape) deserving of higher punishment. It is also pertinent to note at this stage that in earlier cases the Supreme Court has ruled that the term “adequate and special reasons”.

The change in rape laws in 1983 improved the situation to a great extent. Among other things, the punishment for rape was made more severe. Before, the punishment prescribed under section 376 of the IPC provided for a maximum sentence of life imprisonment but there was no minimum limit.Thus,in theory a rapist could get away with a sentence of say, just one month.

In 1983 although the legislature failed to increase the maximum sentence to capital punishment as was vehemently demanded by women’s organizations, it prescribed a minimum sentence of seven years imprisonment. Every rapist on being found guilty thereafter bad to undergo a minimum imprisonment of sevenyears.Besides ,an important provision, section 376(2) was added to the IPC which introduced the concept of some special kinds of rape and prescribed a minimum of ten years for these cases.

These included:
Ø Rape by a police officer within the premises of a police station;
Ø Rape by a public servant of his junior while taking advantage of his official position;
Ø Rape by an official in a jail or remand home of an inmate;
Ø Rape by someone on the staff of a hospital of a woman in the hospital;
Ø Rape of a pregnant women;
Ø Rape of a girl under 12 years of age end gang rape

According to the new provision section 114A of the Indian Evidence Act-in cases of custodial rape,gang rape and rape of a pregnant women,if the victim states in court that she did not consent,then the court shall presume that she did not consent and the burden of proving consent shall shift to the accused.This was a major reform in the law.

In continuation to amendment various special provision section-376A, 376B,376C and 376D were added to the IPC.

In 2007, the Supreme Court struck down a decision of the Karnataka High Court which had reduced the sentence of a convicted rapist to 3 and a half years. The High Court had stated that the sentence should be reduced since the accused was “a young boy of 18 years belonging to Vaddara Community and Illiterate”. The Supreme Court stated that there is a legislative mandate to impose a sentence for not less than 10 years. Only in exceptional cases, for “adequate and special reasons” can a sentence less than 10 years be imposed. It overturned the Karnataka High Court decision saying that there was an “absence of any reason which could have been treated as “special and adequate reason”.

It was clearly noted in Baldev Singh’s case, the Supreme Court said:
1. The fact that the incident is an old one (the incident took place in 1997) is a circumstance which fits into “adequate and special reasons” for reducing a sentence.
2. The parties have entered into a compromise among themselves.

The issue is whether this judgment has gone beyond the legislative mandate, and whether it has adhered to the principles laid down by earlier decisions of the Supreme Court. In 2007, the Supreme Court itself stated that for a crime like rape, strong reasons have to be given to reduce the sentence envisaged by the legislature. Moreover, the provision does not envisage the settlement of a crime by payment of compensation to the victim of a crime. A criminal act is seen in law as a crime against the whole of society (which is why the state’s prosecution agency, and not the victim, goes to court against alleged criminals). Therefore, criminal actions such as rape (or murder, robbery, kidnapping etc.) cannot be “settled” by the payment of compensation under the Indian Penal Code. In this light, it should be interesting to see whether the State files an appeal against this judgment.

But can a “compromise” between the victim and the accused persons be considered a factor in reduction of sentence? As the Court notes in the judgment, S. 376(2)(g) is not a compoundable offence and parties cannot withdraw or compromise the case, even with the permission of the court. Most crimes (including the present one) are considered as crimes against the entire society, which is why the State prosecutes the crime on behalf of the victim and society. If we let victims compromise their cases, when the law does not permit, we end up undermining the entire system. It could also lead to situations where victims are coerced into agreeing to a compromise. If we as a society want to change this position, it is for the Legislature to amend the law.

In Maharashtra v Madhukar Narayan Mardikar, The supreme Court opined that “..even a woman with easy virtue is entitled to privacy and no one can invade her privacy as and when he likes. So also, it is not open to any and every person to violate her person as and when he wishes. Therefore, merely because she is a woman of easy virtue, her evidence cannot be thrown overboard.”

This case highlighted the another aspect of the commission of rape.The court considered rape as intruding into the privacy of individual without consent.

A marriage is a bond of trust and that of affection. A husband exercising sexual superiority, by getting it on demand and through any means possible, is not part of the institution. Surprisingly, this is not, as yet, in any law book in India

The very definition of rape (section 375 of IPC) demands change. The narrow definition has been criticized by Indian and international women’s and children organizations, who insist that including oral sex, sodomy and penetration by foreign objects within the meaning of rape would not have been inconsistent with nay constitutional provisions, natural justice or equity. Even international law now says that rape may be accepted a s the “sexual penetration, not just penal penetration, but also threatening, forceful, coercive use of force against the victim, or the penetration by any object, however slight.” Article 2 of the Declaration of the Elimination of Violence against Women includes marital rape explicitly in the definition of violence against women. Emphasis on these provisions is not meant to tantalize, but to give the victim and not the criminal, the benefit of doubt.

Marital rape is illegal in 18 American States, 3 Australian States, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia. Rape in any form is an act of utter humiliation, degradation and violation rather than an outdated concept of penile/vaginal penetration. Restricting an understanding of rape reaffirms the view that rapists treat rape as sex and not violence and hence, condone such behaviour.

The importance of consent for every individual decision cannot be over emphasized. A woman can protect her right to life and liberty, but not her body, within her marriage, which is just ironical. Women so far have had recourse only to section 498-A of the IPC, dealing with cruelty, to protect themselves against “perverse sexual conduct by the husband”. But, where is the standard of measure or interpretation for the courts, of ‘perversion’ or ‘unnatural’, the definitions within intimate spousal relations? Is excessive demand for sex perverse? Isn’t consent a sine qua non? Is marriage a license to rape? There is no answer, because the judiciary and the legislature have been silent.

Criminal Law Amendment Act,2005
The Act, drafted by Ms Kirti Singh advocate and legal convener of AIDWA, is based on 172nd report of the Law Commission to amend the laws relating to sexual assault in Section 375, 376, 354 and 509 IPC and the relevant sections of the Code of Criminal Procedure 1973 and the Indian Evidence Act 1872. The recommendations are based on the national consultation on the issue organized by the national commission for women

· The major changes sought to be brought about through this amendment are substitution of existing section 375 of the IPC with the following:

“375.Sexual Assault: Sexual assault means –
(a) The introduction (to any extent) by a man of his penis, into the vagina (which term shall include the labia majora), the anus or urethra or mouth of any woman or child–
(b) the introduction to any extent by a man of an object or a part of the body (other than the penis) into the vagina(which term shall include the labia majora) or anus or urethra of a woman
(c) the introduction to any extent by a person of an object or a part of the body (other than the penis) into the vagina(which term shall include the labia majora) or anus or urethra of a child.
(d) manipulating any part of the body of a child so as to cause penetration of the vagina (which term shall include labia majora) anus or the urethra of the offender by any part of the child's body;”

Similarly, Amendment, 2005 brought forth many changes in rape laws, especially related to detailed procedure of examination of victim and accused both by inserting new sections: 164-A, 174 (1A), (b), and 53-A (a) CrPC, and made it clear that in addition to physical examination, it also shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the RMP thinks necessary in a particular case. Section 174 (1A), (b), CrPC inserted to make mandatory inquiry by the Judicial Magistrate in cases of custodial rape and murder cases.

The Central government has also sought comments from the public, states and Union Territories on proposed changes to rape laws — the draft bill of which seeks to replace 'rape' with 'sexual assault' while bringing other aspects like 'oral sex' under its ambit for the first time.

The suggestions have been formulated into the Criminal Law (Amendment) Bill, 2010 which seeks certain amendments in both the Indian Penal Code (IPC) as well as the Code of Criminal Procedure (CrPC). Besides seeking to replace 'rape' with 'sexual assault', the bill also provides for substituting 'sexual intercourse' with 'sexual assault'.

Conclusion
It is expedient to change the human perspective and provide a new dimension to the definition of rape keeping mind the current scenario.We campaign and create awareness about gross injustices and abuse that happen in Indian Legal system. Almost in every offences, the rule of strict interpretation should be established so that there would be no loophole and chances for unjust in the social environment. the recent in change in definition of rape is due to incessant growth of such activity and liberal interpretation of the statute. The scenario is changing now even people talk about “Harmless rape” but how far is it justified is again a matter of controversy. How can people discuss about “Harmless Rape”. According to my point of view , the days are not far ahead , when people will start discussing about “Harmless Murder”. This sounds ridiculous but is really a grave concern to the society. Statute and legislation are completely dependent on the people and complete framework is done by them. But still, It is the requirement of the society to scrutinize  the definition of rape and was highly appreciated by the society.
~~~~~~~~~~~
Some Important Articles on Rape laws in India

# Sexual Harassment and Rape Laws in India
# Redefining the Rape Laws in India
# Rape Laws In India-Appropriate or not?
# A Woman Can't Rape Woman
# Rape law in India and World
# Capital Punishment for Rape. What justice are we taking about?
# Change in definition of Rape in India
# Marital Rape versus Conjugal Right
# "Rape”-Texual or Psychological: The need to change Section 375 of the IPC, 1860
# Dying Declaration by Rape Victims
# Need on capital punishment in the context of rape
# Women and Violence
# Women and Violence part-11
# Human Rights Violations-'An Anathema To Society'
# Subjugation of women rights lead to violation of human rights
# Crime Against Women & its Impact on Them
# Accomplice Evidence In Sexual Offences
# Eve teasing In India And Tortious Liabilities

 

***************************
#An Excerpt from“Rethinking Rape” by Ann J.Cahill
# AIR 1979 SC 185
# 1989 CriLJ 13
# 1996 SCC (2) 384
# AIR 2000 SC 988
# AIR 2004 SC 3566
# http://lawcommissionofindia.nic.in/rapelaws.htm accessed on 30th Oct,2011
# [2004 (5) SCC 518]
# (2011) 2 SCC 550
# http://www.merinews.com/article/the-new-definition-of-rape/129323.shtml accessed on 30th Oct,2011
# State of Andhra Pradesh v. Bodem Sundara Rao, AIR 1996 SC 530)
# http://mynation.net/rapelaw.htm accessed on 30th oct,2011
# ibid
# http://www.prsindia.org/theprsblog/2011/03/04/can-compensation-be-paid-for-crimes-against-the-state/ accessed on 30th October,2011
# Baldev Singh and Ors. V. State of Punjab
# http://lawandotherthings.blogspot.com/2011/03/compromise-formula-in-rape-sentencing.html accessed on 30th Oct,2011
# AIR 1991 SC 207
# “Marital rape and indian Legal scenario”by PRIYANKA RATH is a 5th year law student at Symbiosis Law School, Pune
# ibid
# http://mha.nic.in/pdfs/CriminalLawAmendmendAct,2005.pdf accessed on 30th Oct,2011
# http://articles.timesofindia.indiatimes.com/2010-04-01/india/28113616_1_draft-bill-consent-sexual-assault accessed on 31st Oct,2011
# ibid

Authors contact info - articles The  author can be reached at: manjeetsahu381@legalserviceindia.com




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Article Comments

Posted by manjeetsahu381 on August 30, 2012
You have raised a eye-catching query here.
Generally, the limitation for such kind of offences which are mentioned in IPC is 3 years.
Answering to your 2nd query, it is established fact that the evident to prove the fact lies on the prosecution.Hence, for institution of case under section 376 after 9 month will be really difficult because the victim must have lost all the circumstantial and direct evidence.In such kind of cases , the victim have to hunt for indirect evidences to justify herself.
For Example:If she became pregnant, thn may be DNA test of a baby could justify the commission of rape.

Posted by phinjo guung on July 30, 2012
are there any provisions in the rape laws of our country or any judicial
pronouncemets that states that there has to be a particular time frame
withen which a rape case has to be reported ? what if a rape case is
reported 9 months after the occurance of the incident, here even the
medical report wont show anything as the time of interval is too
long....thanks eagerly waiting for your reply

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