Table of Contents

Rape

Section 375 of the Indian Penal Code requires two essentials to be fulfilled for making it an offence of rape.

They are as follow –

1. An act of sexual intercourse by a man with a woman.

2. The act of sexual intercourse must fall under any one of the seven categories given in section 375.

According to section 375 of the Indian Penal Code (IPC), a man commits rape;

a) If he penetrates his genital into the woman’s vagina, mouth, urethra or anus, or compels the woman to do such an act with him or any other person. OR,

b) If he inserts his genital part or any other part of the body or any object into the woman’s vagina, urethra or anus, or compels the woman to do such an act with him or any other person. OR,

c) If he manipulates any part of the woman’s body to penetrate or insert the genital part into the vagina, urethra or anus, or compels the woman to do such an act with him or any other person. OR,

d) If he puts his mouth to the woman’s urethra, vagina or anus, or compels her to do such an act with him or any other person.

Essential Ingredients of Rape

If the man performs any of the four sexual acts mentioned above in any of the circumstances given below, it amounts to rape. The seven circumstances are –

1. If the man commits sexual intercourse with the woman against her will. If the woman doesn’t possess the desire to do sexual act, and the man overtakes the reasoning capability of a woman is deemed to be an act against her will and amounts to rape.

2. If the man commits sexual intercourse with the woman without her consent.

Note: Against her will and without her consent seems a bit similar with a very minute difference. Will means desire to do something. and If you are not willing, it means you have not given consent. Whereas consent implies that you may have a desire to do something, but you have not given your consent yet.

3. If the man commits sexual intercourse with the woman and has obtained consent by putting her or any person related to the woman in fear of death or hurt amounts to rape.

4. If a man commits sexual intercourse with the woman knowing that he is not her husband and the woman is consented because she believes him as her husband or with whom she is lawfully married.

5. If the man obtains the consent of a woman when she is of unsound mind or intoxicated or administered with any other such substance and when she is not in a condition to understand the nature of the act. Such sexual intercourse amount to rape.

6. If a man commits sexual intercourse with a woman with her consent or without consent, when she is under 18 years of age (minor) amounts to rape. It is immaterial whether she consented or not.

Note: before the 2013 criminal law amendment the age to give consent was 16 years.

7. If a man commits sexual intercourse with a woman when she is unable to communicate consent amounts to rape. Such a situation can be when a woman is an unsound mind, differently abled, physically unfit for resistance, minor, etc.

Explanations in Section 375, IPC

Explanation 1

The term vagina also includes labia majora, the larger outer folds of the vulva. Even a slight penetration in the vulva part is sufficient to make it an offence of rape. Rupturing (tear) of the hymen in a woman’s genital or emanation (discharge) of semen is not necessary.

Explanation 2

Consent includes every form of consent by a woman, either verbal or non-verbal. It may be by words, gestures, or communication of willingness for performing the sexual act.

Exceptions to Offence of Rape

There are two exceptions to the offence of rape. which shall not be considered rape are –

1. A medical treatment or procedure or intervention in the genital part shall not constitute rape.

2. Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape. (15 years changed to 18 years in October 2017)

Punishment for Rape

Punishment for the offence of rape is given under section 376 of the Indian Penal Code.

Any person who commits rape shall be punished with rigorous imprisonment of 10 years, which may extend to life imprisonment depending on the gravity of the offence and shall also be liable to fine.

Section 376 talks about the punishments of Rape

Section 376 (1) :

This section provides for the punishment of the Rape. As per this section, any person who commits rape shall be punishable with rigorous imprisonment of either description for a term of not less than 10 years, but it may extend to imprisonment for a lifetime and shall also be liable to fine. But it also provides for the exception that a person is not punishable for the cases that are provided under section 376(2) of the IPC.

Section 376 (2) (a), (b), (c) and (d) : Punishment for Custodial Rape

This section of the IPC provides for custodial rape.

If rape is committed on a woman in their or their subordinate’s custody

a police officer, within the limits of the police station to which he is appointed, or in the premises of any station house whether or not situated in the police station to which he is appointed, or on a woman in his custody or in the custody of a police officer subordinate to him, or by a public servant, or by the management or the staff of a jail, remand home or other places of custody, or a women’s or children’s institution, or being on the management or on the staff of a hospital, shall be punishable with rigorous imprisonment for a term of not less than 10 years, but it may extend to imprisonment for lifetime and shall also be liable to fine.

A court may also impose imprisonment of description for a term of less than ten years for an adequate and special reason.

Section 376 (2) (e), (f) : Punishment for rape on a pregnant woman and to a woman who is under 12 years of age

As per this section, if any person commits a rape to a woman knowing her to be pregnant or less than the age of 12-years-old shall be punishable with rigorous imprisonment for a term of not less than 10 years, which may extend to imprisonment for lifetime and shall also be liable to fine.

A court may also impose a sentence of imprisonment of description for a term of less than ten years for an adequate and special reason.

Section 376(2) (g) : Punishment for Gang Rape

This section provides for the punishment of gang rape. Gang rape is defined above. A person committing a gang rape shall be punishable with rigorous imprisonment for a term of not less than 10 years, which may extend to imprisonment for lifetime, and shall also be liable to fine.

A court may also impose a sentence of imprisonment of description for a term of less than ten years for an adequate and special reason.

Section 376-A : Punishment for causing death or resulting in a persistent vegetative state of the victim

As per this section, if any person at the time of committing offences provided under sub-section (1) or sub-section (2) of section 376 of IPC causes the death of a woman or such bodily injury that may result in the death or causes a woman to be in the persistent vegetative state shall be punishable with rigorous imprisonment for a term of not less than 20 years, but it may extend to imprisonment for life or with death.

376AB : Punishment for rape on woman under twelve years of age.

Whoever, commits rape on a woman under twelve years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and with fine or with death:

Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:

Provided further that any fine imposed under this section shall be paid to the victim

Section 376-B : Sexual intercourse by husband upon his wife during separation

If any person commits sexual intercourse with her wife, who is living separately under a decree or separation or otherwise, shall be liable to punishment with imprisonment of either description for a term of not less than 2 years, and it can also be extended for a term of 7 years and also be held liable to fine.

Section 376-C : Sexual intercourse by a person in authority

According to this section, any person who being in a position of authority or a fiduciary relationship; or a public servant; or superintendent or manager of jail; or being on the management of the hospital or being on the staff of a hospital, induces or seduces any woman to have sexual intercourse with him, such sexual intercourse can be said as rape and shall be punishable with rigorous imprisonment of either description of not less than 5 years, and it may extend to 10 years and shall also be liable to fine.

376-D : Gang rape

Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person’s natural life, and with fine:

Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:

Provided further that any fine imposed under this section shall be paid to the victim.

376DA : Punishment for gang rape on woman under sixteen years of age.

Where a woman under sixteen years of age is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and with fine:

Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:

Provided further that any fine imposed under this section shall be paid to the victim.

376DB : Punishment for gang rape on woman under twelve years of age.

Where a woman under twelve years of age is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and with fine, or with death:

Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:

Provided further that any fine imposed under this section shall be paid to the victim.

Section 376-E : Punishment for repeat offenders

This section provides punishment for the offenders, who are being convicted for the second time for rape, rape causing death or resulting in a permanent vegetative state, or gang rape. Such an offender shall be punishable with imprisonment for life or with death.