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Report No. 156

Chart

Year

Age of consent under section under Section 375, 5th clause, I.P.C. Age mentioned in the Exception to section 375, I.P.C. Minimum age of marriage under the Child Marriage Restraint Act, 1929

1860

10 yrs.

10 yrs.

-

1891

12 yrs

12 yrs.

-

(Act 10 of 1891)
(after the amendment of I.P.C.)

1925

14 yrs.

13 yrs.

-

(after the amendment of I.P.C.)

1929

14 yrs.

13 yrs.

14 yrs.

(after the passing of the Child Marriage Act)

1940

16 yrs.

15yrs.

15 yrs.

(after the amendment of the Penal Code and the Child Marriage Act)

1978

16 yrs.

15 yrs.

18 yrs

9.18. As may be seen from the chart, the minimum age of marriage for girls has been increased to 18 years after the amendment of the Child Marriage Restraint Act, 1929 in 1978. The Commission recommended that "since marriage with a girl below eighteen years is prohibited ... sexual intercourse with a girl below eighteen years should also be prohibited".

9.19. The 84th Report did not recommend any changes in section 376 which provides punishment for the offence of rape. The Commission was of the view that judicial discretion be not fettered by prescribing a minimum sentence.

9.20. The 84th report by introducing a broader concept of "misconception of fact" has eliminated any examination of morality or the sexual antecedents of the victim of rape. Section 375, fourthly allows this under a broader misconception of fact which includes the narrower mistake of identity.

9.21. Consequent on the recommendations of the Law Commission in its 84th Report, the Government introduced in the Lok Sabha the Criminal Law (Amendment) Bill, 1980 to amend, inter alia, the Indian Penal Code. The Government accepted the following recommendations of the Law Commission:

1. accepting the concept of consent as free and voluntary consent;

2. making a distinction between judicially separated wife and wife; and

3. accepting the three concepts of custodial rape as recommended in the Commission's 42nd Report.

9.22. The Bill made a significant addition by introducing the separate offence of gang rape by two or more persons.

9.23. The Bill was sent to the Joint Committee of the Parliament. The changes made by the Committee were:

1. It reduced the age of marital rape. The exception to section 375 stated that sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape. The Committee reduced this age to 12 years.

2. A new section, section 376A was incorporated, which deals with sexual intercourse with judicially separated wife without her consent. The Committee provided a lower punishment for rape of a judicially separated wife.

3. The Committee did not accept the expanded concept of free and voluntary consent in section 375.

9.24. In the Draft Bill reported by the Joint Committee, one change was made in its final reading stage. The age above which sexual intercourse with the wife is not rape was retained at 15.

9.25. The Parliament enacted the Criminal Law (Amendment) Act, 1983. The chief features of which, so far as the offence of rape in I.P.C. was concerned, were:

1. increase in the punishment of rape;

2. distinction between gang rape and custodial rape and stiffer penalties for the same;

3. separate category of rape on pregnant woman;

4. distinguishing rape on a judicially separated wife and provision for a lower punishment for it than in other instances of rape;

5. reduction in the punishment of rape on wife between 12 and 15 years of age;

6. distinguishing rape on woman of unsoundmind or one who is intoxicated.

9.26. Accordingly sections 375 and 376 were amended and new sections 376A, 376B and 376C were inserted. All the important recommendations of the Law Commission have been incorporated.

The provisions read as follows:

"375. Rape.-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."

"376. Punishment for rape.-(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:

Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.

(2) Whoever,-

(a) being a police officer commits rape

(i) within the limits of the police station to which he is appointed; or

(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or

(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or

(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or

(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or

(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in the hospital; or

(e) commits rape on a woman knowing her to be pregnant; or

(f) commits rape on a woman when she is under twelve years of age; or

(g) commits gang-rape, shall be punished with rigorous imprisonment for a term which shall not be leas than ten years but which may be for life and shall also be liable to fine:

Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.

Explanation 1.-Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang-rape within the meaning of this sub-section.

Explanation 2.-"Women's or children's institution" means an institution, whether called an orphanage or a home for neglected women or children or a widows' home or by any other name, which is established and maintained for the reception and care of women or children.

Explanation 3.-"Hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation."

"376A. Intercourse by a man with his wife during separation.-Whoever has sexual intercourse with his own wife, who is living separately from him under a decree of separation or under any custom or usage without her consent shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine."

"376B. Intercourse by public servant with woman in his custody.-Whoever, being a public servant, takes advantage of his official position and induces or seduces, any woman, who is in his custody as such public servant or in the custody of a public servant subordinate to him, to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine."

"376C. Intercourse by Superintendent of jail, remand home, etc.-Whoever, being the Superintendent or Manager of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women's or children's institution takes advantage of his official position and induces or seduces any female inmate of such jail, remand home, place or institution to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine.

Explanation 1.-"Superintendent" in relation to a jail, remand home or other place of custody or a women's or children's institution includes a person holding any other office in such jail, remand home, place or institution by virtue of which he can exercise any authority or control over its inmates.

Explanation 2.-The expression "women's or children's institution" shall have the same meaning as in Explanation 2 to sub-section (2) of section 376."

"376D. Intercourse by any member of the management or staff of a hospital with any woman in that hospital.-Whoever, being on the management of a hospital or being on the staff of a hospital takes advantage of his position and has sexual intercourse with any woman in that hospital, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine.

Explanation.-The expression 'hospital' shall have the same meaning as in Explanation 3 to sub-section (2) of section 376."

9.27. Now we shall examine the recommendations of the National Commission for Women (NCW) and other suggestions made in response to the Questionnaire. Following are the recommendations of the National Commission for Women:

1. Section 375 be amended to change the reference to 16 years in paragraph, sixthly, to 18 years to provide for the increase in the age of majority of girls to 18 years.

2. Also a consequential amendment to change the reference to 15 years to 18 years, has also been made in the Exception which deals with "sexual intercourse by a man with his own wife not being under 15 years of age".

3. Section 376 providing for punishment of rape be amended thus:

(a) The reference of sentence of punishment to 2 years for rape by the husband with his own wife who is more than 12 years of age is proposed to be increased to 5 years [section 376 sub-clause (1)].

(b) The punishment provided in sub-section (2) is proposed to be increased from a minimum punishment of 10 years to punishment of rigorous imprisonment for life. At the same time, the punishment for rape when a woman who is less than 12 years, of age is proposed to be taken out of this section and dealt with in a separate section providing for higher punishment. This is sought to be done by incorporating a new section, namely sub-section (3) to section 376 which would read as:

Whoever commits rape on a woman when she is under twelve years of age shall be punished with rigorous imprisonment for a term which shall not be less than ten years and shall also be liable to fine.

It is also recommended that three new sections, section 376E, section 376F and section 376G be incorporated in the Indian Penal Code.

"Section 376E: Offence under section 378A to section 376D against children.-Whoever commits an offence under section 378A to section 376D (both inclusive) shall, if the woman is under eighteen years of age, be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.

Section 376F: Offence of eve-teasing.-Whoever intending to annoy any woman utters any word or makes any sound or gesture or exhibits any object or does any other act in any public place intending that such word or sound shall be heard or that such gesture or object shall be seen or that such act shall be noticed or felt by such woman, commits the offence of eve-teasing.

Section 376G: Punishment for eve-teasing.-Whoever commits the offence of eve-teasing shall be punished with imprisonment of either description for a term which may extend to 5 years and shall also be liable to fine."

9.28. According to the latest report of the National Crime Records Bureau entitled Crime in India, 98,948 cases of crime against women were registered in 1994 compared to 83,954 cases in 1993 and 79,037 cases in 1992. This amounts to an increase of 17.9 per cent. in crime against women at the national level in 1994 with considerable increase in cases registered under rape, kidnapping and abduction. The Report points out that Delhi, Rajasthan, Tamil Nadu, Madhya Pradesh, Himachal Pradesh, Karnataka and Pondicherry have been categorised as "high crime prone" States.

In 1994 Madhya Pradesh reported the highest incidence of rape (2,929) accounting for 22.2 per cent. of the national ratio. This was followed by Uttar Pradesh (2,078), Maharashtra (1,304), Bihar (1,130), Rajasthan (1,002). Other States which recorded more than 500 cases of rape during the year were Andhra Pradesh, West Bengal and Assam. Delhi reported 309 incidents contributing 2.3 per cent. towards national average.

Among the cities, Delhi and Mumbai continued to record more cases of rape. At the national level, victims of rape were the highest in the age group of 16-30 years accounting for 56.3 per cent. of the total victims. But in the metropolitan cities, the situation was altogether different as 50 per cent. of the total victims were girls below 16 years of age.1

The Delhi State Commission for Women in its Report Situation of Girls and Women in Delhi (1997) has pointed that the "rate of rape" in Delhi is twice as high as in the whole country. During 1993 as many as 233 rape cases were reported which rose to 321 in 1994, to 362 in 1995 and to 470 in 1996. An analysis of 1996 crime data showed that in 88 per cent. of the rape cases relatives and acquaintances were involved and in 89 per cent. of the cases the crime was committed at home.

The Report also points out that 60 per cent. of the reported cases in Delhi are of girls below 18 years. Further in 1913 as many as 18 per cent. of rape victims were below 10 years of age as against 5 per cent. in the whole country. About 42 per cent. of the rape victims were in the 10 to 16 age groups compared to 23 per cent. in the country.2

1. See Upsurge in Crime against Women, Report, Hindu (Delhi Ed.), 9-12-1996.

2. See Delhi's Shame: Women Most unsafe, incorporating an analysis of the Report of the Delhi State Commission for Women, Hindustan Times (Delhi Ed.), 5-2-1997.

9.29. The UN Commission on the Status of Women in its Draft Declaration of Violence Against Women declares that "violence nullifies women's enjoyment of human rights of freedom". The Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW 1979), ratified by India recently, also does not speak of gender-based violence. It is generally agreed that violence against women is an infringement of their fundamental rights to life, liberty and dignity.

9.30. There is a school of thought that the existing definition of rape in I.P.C. is narrow and does not cover different forms of sexual violence experienced by women.1 The present definition requires proof of penetration by penis and lack of consent by the complainant. Consent plays a crucial part in a rape trial.

1. See provisions of the Sexual Assault Draft Bill, 1993 prepared by the Ad hoc Committee of the National Commission for Women; also see the Memorandum on Reform of Laws relating to Sexual Offences prepared by Shomona Khanna and Ratna Kapur, Centre for Feminist Legal Research, New Delhi.

9.31. Further, section 354 (assault or criminal force on a woman with intent to outrage her modesty) and section 509 (word, gesture or act intended to insult the modesty of a woman) as interpreted by the courts do not cover virulent forms of sexual assault on women.

9.32. The proponents of this view advocate that the sections of I.P.C. dealing with rape (sections 375 and 376) and sections 354 and 509 be repealed and be substituted by provisions on "Sexual Assault" - to be defined broadly to include all forms of sexual violence on women including rape.

9.33. After giving considerable thought to the point of view referred to above, the Law Commission is of the opinion that the offence of rape including custodial rape and its punishment be retained in I.P.C. subject to the modifications stated below in para. 9.34.

9.34. The Law Commission recommends that clause 'Thirdly' in section 375 be amended on the following lines:



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