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Report No. 156

Chapter IX

Offences against Women and Children

I. Rape

9.01. The Law Commission in its Eighty-fourth Report on Rape and Allied offences: Some Questions of Substantive Law, Procedure and Evidence has defined rape as "the ultimate violation of the self. It is a humiliating event in a woman's life which leads to fear for existence and a sense of powerlessness".1 Other scholars have described rape as an internal assault or sexual invasion which is characterised by violent taking away of control over the sexual autonomy of the woman. Rape is an act of violence affecting the physical and emotional integrity and dignity of the victim.2

1. Law Commission, Eighty-fourth Report, para. 1.2 (1980).

2. See Susan Brownmiller Against Our Will: Men, Women and Rape, (1990); Lotika Sarkar Rape: A Human Rights versus a Patriarchal Interpretation, (I) Indian Journal of Gender Studies 69 (1994); Flavia Agnes Protecting Women against Violences, 27 Economic and Political Weekly (EPW) 19 (1992); also by the same author State Gender and the Rhetoric of Law Reform (1995), Lorenne Clark and Debra Lewis Rape - The Price of Coercive Sexuality (1977).

9.02. The Law Commission in its Forty-second Report had recommended certain changes in section 375 which deals with the offence of rape. The following were the changes recommended by the Commission to section 375.

Clause 'Thirdly' of section 375 defines sexual intercourse as rape with the woman's consent when it has been obtained by putting her in fear of death or of hurt. The Commission had recommended that the words "either to herself or to anyone else present at the place" be added after the word "hurt".

On the question of consent, the Commission had pointed out that section 90 of I.P.C. includes the term "injury" which is of wider import. Injury includes any injury to mind, body, reputation or property. The Commission, however, did not recommend any amendment on this count.

9.03. The Commission also recommended that marital rape should be removed from the scope of section 375 and placed as a separate offence. The Commission observed:1

"The exception in section 375 provides that sexual intercourse by a man with his own wife, the wife not being under 15 years of age is not rape. The punishment for statutory rape by the husband is the same when the wife is under 12 years of age but when she is between 12 and 15 years of age the punishment is mild, being imprisonment upto two years, or fine or both. Naturally, the prosecutions for this offence are very rare. We think, it would be desirable to take this offence altogether out of the ambit of section 375 and not to call it rape even in a technical sense. The punishment for the offence also may be provided in a separate section."

1. Law Commission, Forty-second Report, para. 16.115.

9.04. The Commission considered the position of legally separated wife vis-a-vis the offence of rape. It was observed:

"Under the exception, a husband cannot be guilty of raping his wife if she is above fifteen years of age. This exception is to take note of one special situation, namely when the husband and wife are living apart under a decree of judicial separation or by mutual agreement. In such a case, the marriage technically subsists and if the husband has sexual intercourse with her against her will or without her consent, he cannot be charged with the offence of rape. This does not appear to be right. We consider that, in such circumstances, sexual intercourse by a man with his wife without her consent will be punishable as rape."1

1. Law Commission, Forty-second Report, para. 16.115.

9.05. Explanation II as recommended by the Commission is as follows:

"A woman living separately from her husband under a decree of judicial separation or by mutual consent shall be deemed not to be his wife for the purpose of this section."

9.06. The Forty-second Report had recommended amendment in section 375 on the following lines:

"375. Rape.-A man is said to commit rape who has sexual intercourse with a woman other than his wife-

(a) against her will; or

(b) without her consent; or

(c) with her consent when it has been obtained by putting her in fear of death or of hurt, either to herself or to anyone else present at the place; or

(d) with her consent, knowing that it is given in the belief that he is the husband.

Explanation I.-Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Explanation II.-A woman living separately from her husband under a decree of judicial separation or by mutual agreement shall be deemed not to be his wife for the purpose of this section."1

1. Ibid., para. 16.117.

9.07. The existing section 375 stipulated a maximum sentence of life or imprisonment of either description for 10 years for rape. The Commission suggested that it should be rigorous imprisonment for a term upto 14 years.

9.08. The Commission recommended the incorporation of sections 376A and 376B. Section 376A distinguished sexual intercourse between a wife of 12 to 15 years of age and a wife of less than 12 years of age, sexual intercourse with the wife over 15 years of age without her consent not being an offence. The Commission recommended rigorous imprisonment upto 7 years if the wife was under 12 years and in any other case, imprisonment upto 2 years of either description.

9.09. Section 376B made illicit intercourse with a girl under 16 years but not under 12 years of age even with her consent punishable with imprisonment of either description upto 7 years.

9.10. The Commission added that it shall be a defence to a charge under this section for the accused to prove that he, in good faith, believed the girl to be above sixteen years of age.1

1. Law Commission, Forty-second Report, paras. 16.115, 16.120.

9.11. The Forty-second Report's signal contribution to the reform of rape laws was the introduction of the concept of custodial rape. The Commission recommended the addition of sections 376C, 376D and 376E dealing with custodial rape by a public servant or by a superintendent etc. of a women's or children's institution, and by a manager of a hospital with a woman patient suffering from mental disorder respectively.

9.12. The provisions on rape law remained unamended, as the Indian Penal Code Amendment Bill could not be passed due to the dissolution of the Lok Sabha in 1979.

9.13. In the interregnum the Supreme Court of India decided some cases which took a restricted view of the scope of the offence of rape and acquitted the accused. The relevant decisions are Pratap Misra v. State of Orissa, AIR 1977 SC 1307 and Tuka Ram v. State of Maharashtra, AIR 1979 SC 185. The latter case populthiy known as the Mathura Rape case involved the rape of a young girl aged between 14-16 years of age by two police constable in the police station.

The Bombay High Court reversed the order of acquittal of the accused by the Session Court and sentenced them to rigorous imprisonment of varying terms. The High Court came to the conclusion that the policemen had "taken advantage of the fact that Mathura was involved in a complaint filed by her brother, and she was alone in the dead hour of the night" in a police station.

This proved that she could not, in any probability, have consented to intercourse. The Supreme Court after assessing the evidence on record concluded that the circumstantial evidence was such that it did not lead to "reasonable evidence of guilt" and reversed the Bombay High Court decision and acquitted the accused.

This led to four law teachers writing an Open Letter to the Chief Justice of India criticising the judgment. The Open Letter generated nationwide protests from women's organisations and different sections of the Indian society :1 Their collective demand was for reform of the law on rape. The Union Government responded to the public campaign and referred the matter of reforming rape laws to the Law Commission.

1. See Vasudha Dhagamwar Law, Power and Justice, 237-287 (2nd Edn., 1992).

9.14. The Law Commission sent its 84th Report on "Rape and Allied Offences; Some Questions of Substantive Law, procedure and Evidence" to the Government in 1980.

9.15. The Commission gave particular attention to the definition of consent and to rape of girls below the minimum age. It also took into account some of the recommendations incorporated in the Forty-second Report. The Commission had dispensed with the suggestions in the earlier Report which had characterized rape as-

1. rape proper;

2. rape with child-wife; and

3. rape i.e. sexual intercourse with the girl between 12-16 years of age, with her consent.

The reasons given by the Commission for discarding the above categorisation were:1

"the Commission now feels that such a restructuring would be out of tune with the current thinking on the question of trial of offenders for rape and, therefore, structure of section 375 should not be altered. Since the making of the recommendation by the Commission in its earlier Report, there has been a radical and revolutionary change in the approach to the offence of rape;
its enormity is frequently brought into prominence and heightened by the revolting and gruesome circumstances in which the crime is committed; the case law has blurred the essential ingredients of the offence and introduced instability into the previously well established law bearing on the offence of rape. The Commission feels that restructuring will produce uncertainty and distortion in section 375, which should in its opinion, retain its present logical and coherent structure."

Consequently, the Commission recommended the omission of section 375A and section 375B. Instead, the Commission recommended leaving rape of child-wife (section 375A) in the general section 375 instead of placing it in a separate section. Section 375B which dealt with rape on a girl between 12-16 years of age with her consent was omitted altogether. Further, the Commission retained sections 376C, 376D and 376E which dealt with custodial rape; but renumbered them as sections 376A, 376B and 376C.

1. Law Commission, Eighty-fourth Report, para. 1.2 (1980), para. 2.21.

9.16. On the question of consent, the Commission observed that they would not only include the suggestions made in the earlier Report but suggested further amendments which would strengthen the concept of "free consent" for the purposes of section 375. The Commission felt that the term "consent" was inadequate and should be substituted by the phrase "free and voluntary consent". The Commission observed:1

"The substitution of the expression "free and voluntary consent" for the word "consent" in the second clause makes it clear that the consent should be active consent as distinguished from that consent which is said to be implied by silence."

The Commission proceeded to say:

"Under the amendment as recommended, it would not be open to the Court to draw an inference of consent on the part of the woman from her silence due to timidity or meekness or from such circumstances without any more - as that the girl meekly followed the offender when he pulled her, catching hold of her hand, or that the woman kept silent and did not shout or protest or cry out for help."

The Commission further stated:2

"The modifications recommended by us in the third clause vitiated consent not only when a woman is put in fear of death or hurt, but also when she is put in fear of any "injury" being caused to any person (including herself) in body, mind, reputation or property and also when her consent is obtained by criminal intimidation, that is to say by any words or acts intended or calculated to put her in fear of any injury or danger to herself or to any person in whom she is interested or when she is threatened with any injury to her reputation or property or to a reputation of any one in whom she is interested.

Thus, if the consent is obtained after giving the woman a threat of spreading false and scandalous rumours about her character or destruction of her property or injury to her children or parents or by holding out other threats of injury to her person, reputation or property, that consent will also not be consent under the third clause as recommended to be amended."

1. Ibid., para 2.8.

2. Law Commission, Eighty-fourth Report, (1980), paras. 2.9, 2.21.

9.17. The Commission made significant recommendations on age of consent. The age of consent as applicable to the offence under section 375 has been amended several times since the framing of I.P.C.. The 84th Report has graphically presented in the form of a chart which is given below:1

1. Ibid., pars 2.19. 3.



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