What is Section 375? Law and Amendment under Indian Penal Code

What is Section 375 ?

Rape is considered to be a very serious offence against humankind. Section 375 interprets the perimeter and complexities of Rape.

The section categorises the actions of a man that makes him liable for rape and the punishment for the same is mentioned under Section 376 of IPC.

Section 375 defines Rape as a non-consensual sexual intercourse with a woman by a man against her will, without her consent by coercion or fraud or when she been intoxicated or is of unsound mental health and in any case, if she is under 18 years of age.

The section forbids any sexual activity with a woman without her consent or done under fear of death or with force or where the woman gives her consent due to unsoundness of mind.

Simply put, Section 375 is committed when a man perpetrates sexual activities with a woman without her consent which includes penetration or insertion of objects or any part of the body, manipulation of body parts, or applies his mouth to her body  parts.

However, the section states Two Exceptions, medical procedures and consensual sexual intercourse within marriage where wife is above 15 years of age.

Section 375 : Essential Elements and Analysis

1. There must be sexual intercourse with a woman by a man.
2. Section 375 enlists certain acts if performed by a man against a woman would amount to Rape –

1. Penetration of a man’s sexual organ (penis) into a woman’s mouth, vagina, urethra or anus or making her do so himself or by someone else. The term ‘penetration of penis’ means penetration of the penis to any extent into the vagina of a woman and how far it has gone inside the vagina is immaterial i.e even the slightest penetration will amount to rape.
2. Insertion of any object into a woman’s vagina, urethra or anus or making her do so with himself or someone else.
3. If the man manipulates any body part of the woman to cause penetration into her vagina, urethra, anus or any other body part or making her do so with himself or someone else.
4. Applying his mouth to a woman’s vagina, urethra or anus or making her do so with himself or someone else.

3. The said sexual intercourse if done under seven descriptions would amount to rape if done –

1. Against her will – When something is done ‘against the will’ the element of active or voluntary participation is absent. The term ‘will’ means consciousness and mental determination. ‘Against her will’ determines that the woman is in possession of her sense and therefore is willingly not consenting or participating after using her mental determination. In Mayers, (1872) 12 Cox 311, it was held that if the sexual intercourse is done with a woman who is asleep, then it would amount to being against her will.
2. Without her consent – ‘Consent’ here means free consent which must be an act of reason accompanied with deliberation of mind. It is a voluntary and conscious acceptance towards the participation of an act. It is essential that the consent of the woman must be obtained prior to the act. In Rao Hamain Singh v. State AIR, 1958, Punjab, the Court held that consent requires voluntary participation after freely exercising the choice between resistance and assent.
3. Consent obtained under fear of death or hurt – When consent is obtained under fear of death or hurt, it amounts to rape. The clause was amended by the Criminal Law (Amendment) Act, 1983 and it stated that commission of rape would also include by putting a person in whom the victim is interested in fear of death or hurt and then getting the consent of the victim. In such situation, interested person of a woman like her children, parents, husband etc when put under fear of death or hurt and her permission is obtained, it would not be a valid consent.
4. Consent given under misconception of fact, that the man is her husband – When the victim believes that she is lawfully married to the man and does not object the sexual intercourse but where the man is aware that he is not married to the victim is called consent under misconception of the fact of existence of a lawful marriage. Therefore, consent obtained by fraud or under misconception is no consent.
5. Consent given by reason of unsoundness of mind, intoxication, or under influence of substance – This clause has been inserted under the Criminal Law (Amendment) Act, 1983 that deals with consent given due to intoxication or unsoundness of mind.
6. With a woman under 18 years of age with or without consent – Earlier the age stated was 16 years that sexual intercourse with a woman under 16 years of age will amount to rape with or without consent, later the age has been changed to 18 years.
7. When she is unable to communicate consent – The offense is done when the victim is not in the position to consent at the time of intercourse. In such cases, the inability to not give consent by the woman can be due to any reason.

Amendment in Section 375

• Section 375 was widened after the Criminal Law (Amendment), 2013. Earlier the ambit of the section was limited.
• The amendment added that if the man inserts any object or any other part of the body into the vagina, urethra, anus, or mouth of a woman, would consider rape.
• The legislation expanded the definition of rape to include acts like penetration of penis or any object or any other part of the body to any extent into the woman or making any other person do so or applying mouth or touching private parts.
• The term ‘penetration’ has been explained that it means penetration to any extent.
• The amendment also stated that lack of physical resistance is immaterial and that if the victim claims that while sexual intercourse there was no consent, then the court shall presume the same after deliberating facts of the case.

Conclusion

Rape is a violation and an offence not only against the victim but also against the entire society. It is the most heinous and hated offence. The offence of rape is against basic human rights and violates basic most important fundamental rights  of the constitution. It is the act of seizure to have an intercourse with a woman without her consent. Section 375 and 376, Indian Penal Code criminalises and penalizes it. Section 375 enlists unlawful circumstances where certain acts of a man against the woman would amount to rape. The legislation under Section 375 intends to bring justice to the victim and punish the perpetrator severely. However, the section still requires amendments and changes as per current societal norms without gender bias.

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