Marital Rape
The notion of marital rape has been a topic of marital rape has been a
topic of significant debate, concern and legal ambiguity for a long
period of time.
However, Indian penal code does not regard marital rape as illegal.
Section 375 of the IPC defines the acts that constitute rape by a
man.
Exception 2 of Section 375 of the Indian Penal Code states that
“sexual intercourse by a man with his wife, and if the wife not being
under fifteen years of age, is not rape”.
o In October 2017, the Supreme Court of India increased the age to
18 years
Delhi high court has been hearing arguments in the case since 2015 and
passed a contentious verdict in 2022 according to which one judge
favored criminalizing marital rape (on grounds of women’s right to
consent, equality, speech and freedom, life and liberty ) while the other
judge was against it on the grounds that marriage naturally implied
consent.
Parliament of India in 2015 also dismissed this point on the view that
marriage is treated as a sacred union in this country and thus marital
rape cannot be applied.
Recently on July 19 , 2023 Supreme court said that it would list marital
rape petitions for hearing as an appeal against the previous verdicts.
Reference only
**
Section 375 of the Indian Penal Code (IPC):
o Section 375 of the IPC defines the acts that constitute
rape by a man.
o The provision, however, lays down two exceptions as
well.
Apart from decriminalising marital rape, it mentions
that medical procedures or interventions shall
not constitute rape.
Exception 2 of Section 375 of the Indian Penal
Code states that “sexual intercourse by a man with
his wife, and if the wife not being under fifteen
years of age, is not rape”.
o In October 2017, the Supreme Court of India increased
the age to 18 years.
Domestic Violence Act, 2005:
o It hints at marital rape by any form of sexual abuse in a
live-in or marriage relationship.
o However, it only provides for civil remedies. There is no
way for marital rape victims in India to initiate criminal
proceedings against their perpetrator
**
Doctrine of Coverture:
o According to the Doctrine of Coverture, a woman
has no individual legal identity after marriage.
o Notably, the Doctrine of Coverture found a mention
during the hearing when the Supreme Court of India
struck down adultery as a criminal offence in 2018.
It was held that Section 497, that classified
adultery as a crime, is based on the Doctrine of
Coverture.
o This doctrine, although not recognised by the
Constitution, holds that a woman loses her identity
and legal rights with marriage, is violative of her
fundamental rights.
"Violence against women is perhaps the most shameful human
rights violation, and it is perhaps the most pervasive. It knows no
boundaries of geography, culture, or wealth. As long as it
continues, we cannot claim to be making real progress towards
equality, development, and peace."-- Kofi Annan
Outraging a woman’s modesty
Although the Indian criminal law does not explain what the definition of
modesty is but in stateof Punjab vs Major Singh(1967) Supreme court
defined it as ‘’the essence of woman’s modesty is her sex. The modesty
of an adult is writ large on her body. Young or old, intelligent or
imbecile, awake or sleeping, the woman possesses modesty capable of
being outraged."
Sexual Harassment as mentioned in sec 354A
Voyeurism as mentioned in sec 354C, and
Stalking as mentioned in sec 354D.
All the three abovementioned offences were inserted in the IPC by the
Criminal Law (Amendment) Act, 2013.
The following actions are categorized as sexual harassment.
Unwanted and blatant sexual approaches in physical contact and advances;
A request or demand for sexual favours;
Displaying pornography against a woman's will; and
Making sexually provocative statements.
Punishment:
The penalty is listed in the section as well. For the first three actions, the
punishment is rigorous imprisonment for up to three years, or a fine, or
both. While the last is punishable by a year of simple or rigorous
imprisonment, a fine, or both.
Chapter XVI
Sec 299. Culpable homicide.—Whoever causes death by doing an act with
the intention of causing death, or with the intention of causing such bodily
injury as is likely to cause death, or with the knowledge that he is likely by
such act to cause death, commits the offence of culpable homicide.
Explanation 1.—A person who causes bodily injury to another who is
labouring under a disorder, disease or bodily infirmity, and thereby
accelerates the death of that other, shall be deemed to have caused his
death.
Explanation 2.—Where death is caused by bodily injury, the person who
causes such bodily injury shall be deemed to have caused the death,
although by resorting to proper remedies and skilful treatment the death
might have been prevented.
((Explanation 3.—The causing of the death of a child in the mother's womb
is not homicide. But it may amount to culpable homicide to cause the death
of a living child, if any part of that child has been brought forth, though the
child may not have breathed or been completely born.))
Sec 300. Murder.—Except in the cases hereinafter excepted, culpable
homicide is murder, if the act by which the death is caused is done with the
intention of causing death, or—
2ndly.—If it is done with the intention of causing such bodily injury as the
offender knows to be likely to cause the death of the person to whom the
harm is caused, or—
3rdly.—If it is done with the intention of causing bodily injury to any person
and the bodily injury intended to be inflicted is sufficient in the ordinary
course of nature to cause death, or—
4thly.—If the person committing the act knows that it is so imminently
dangerous that it must, in all probability, cause death, or such bodily injury
as is likely to cause death, and commits such act without any excuse for
incurring the risk of causing death or such injury as aforesaid.
Exception 1.—When culpable homicide is not murder.—Culpable homicide
is not murder if the offender, whilst deprived of the power of self-control
by grave and sudden provocation, causes the death of the person who gave
the provocation or causes the death of any other person by mistake or
accident.
The above exception is subject to the following provisos:—
First.—That the provocation is not sought or voluntarily provoked by the
offender as an excuse for killing or doing harm to any person.
Secondly.—That the provocation is not given by anything done in
obedience to the law, or by a public servant in the lawful exercise of the
powers of such public servant.
Thirdly.—That the provocation is not given by anything done in the lawful
exercise of the right of private defence.
Explanation.—Whether the provocation was grave and sudden enough to
prevent the offence from amounting to murder is a question of fact.
Exception 2.—Culpable homicide is not murder if the offender in the
exercise in good faith of the right of private defence of person or property,
exceeds the power given to him by law and causes the death of the person
against whom he is exercising such right of defence without premeditation,
and without any intention of doing more harm than is necessary for the
purpose of such defence.
Exception 3.—Culpable homicide is not murder if the offender, being a
public servant or aiding a public servant acting for the advancement of
public justice, exceeds the powers given to him by law, and causes death by
doing an act which he, in good faith, believes to be lawful and necessary for
the due discharge of his duty as such public servant and without ill-will
towards the person whose death is caused.
Exception 4.—Culpable homicide is not murder if it is committed without
premeditation in a sudden fight in the heat of passion upon a sudden
quarrel and without the offender's having taken undue advantage or acted
in a cruel or unusual manner.
Explanation.—It is immaterial in such cases which party offers the
provocation or commits the first assault.
Exception 5.—Culpable homicide is not murder when the person whose
death is caused, being above the age of eighteen years, suffers death or
takes the risk of death with his own consent.
301. Culpable homicide by causing death of person other than person
whose death was intended.—If a person, by doing anything which he
intends or knows to be likely to cause death, commits culpable homicide by
causing the death of any person, whose death he neither intends nor
knows himself to be likely to cause, the culpable homicide committed by
the offender is of the description of which it would have been if he had
caused the death of the person whose death he intended or knew himself
to he likely to cause.
302. Punishment for murder.—Whoever commits murder shall be
punished with death or 1 [imprisonment for life], and shall also be liable to
fine.
303. Punishment for murder by life-convict.—Whoever, being under
sentence of 1 [imprisonment for life], commits murder, shall be punished
with death.
304. Punishment for culpable homicide not amounting to murder.—
Whoever commits culpable homicide not amounting to murder, shall be
punished with 1 [imprisonment for life], or imprisonment of either
description for a term which may extend to ten years, and shall also be
liable to fine, if the act by which the death is caused is done with the
intention of causing death, or of causing such bodily injury as is likely to
cause death; or with imprisonment of either description for a term which
may extend to ten years, or with fine, or with both, if the act is done with
the knowledge that it is likely to cause death, but without any intention to
cause death, or to cause such bodily injury as is likely to cause death.
2 [304A. Causing death by negligence.—Whoever causes the death of any
person by doing any rash or negligent act not amounting to culpable
homicide, shall be punished with imprisonment of either description for a
term which may extend to two years, or with fine, or with both.]
3 [304B. Dowry death.—(1) Where the death of a woman is caused by any
burns or bodily injury or occurs otherwise than under normal circumstances
within seven years of her marriage and it is shown that soon before her
death she was subjected to cruelty or harassment by her husband or any
relative of her husband for, or in connection with, any demand for dowry,
such death shall be called “dowry death”, and such husband or relative
shall be deemed to have caused her death.
Explanation.—For the purposes of this sub-section, “dowry” shall have the
same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of
1961).
(2) Whoever commits dowry death shall be punished with imprisonment
for a term which shall not be less than seven years but which may extend to
imprisonment for life.]
305. Abetment of suicide of child or insane person.—If any person under
eighteen years of age, any insane person, any delirious person, any idiot, or
any person in a state of intoxication, commits suicide, whoever abets the
commission of such suicide, shall be punished with death or 1
[imprisonment for life], or imprisonment for a term not exceeding ten
years, and shall also be liable to fine.
306. Abetment of suicide.—If any person commits suicide, whoever abets
the commission of such suicide, shall be punished with imprisonment of
either description for a term which may extend to ten years, and shall also
be liable to fine.
307. Attempt to murder.—Whoever does any act with such intention or
knowledge, and under such circumstances that, if he by that act caused
death, he would be guilty of murder, shall be punished with imprisonment
of either description for a term which may extend to ten years, and shall
also be liable to fine; and if hurt is caused to any person by such act, the
offender shall be liable either to 1 [imprisonment for life], or to such
punishment as is hereinbefore mentioned.
308. Attempt to commit culpable homicide.—Whoever does any act with
such intention or knowledge and under such circumstances that, if he by
that act caused death, he would be guilty of culpable homicide not
amounting to murder, shall be punished with imprisonment of either
description for a term which may extend to three years, or with fine, or
with both; and, if hurt is caused to any person by such act, shall be
punished with imprisonment of either description for a term which may
extend to seven years, or with fine, or with both.
351. Assault.—Whoever makes any gesture, or any preparation intending
or knowing it to be likely that such gesture or preparation will cause any
person present to apprehend that he who makes that gesture or
preparation is about to use criminal force to that person, is said to commit
an assault.
Explanation.—Mere words do not amount to an assault. But the words
which a person uses may give to his gestures or preparation such a
meaning as may make those gestures or preparations amount to an assault.
5 [375. Rape.—A man is said to commit “rape” if he—
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or
anus of a woman or makes her to do so with him or any other person; or (
b) inserts, to any extent, any object or a part of the body, not being the
penis, into the vagina, the urethra or anus of a woman or makes her to do
so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration
into the vagina, urethra, anus or any part of body of such woman or makes
her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her
to do so with him or any other person, under the circumstances falling
under any of the following seven 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 eighteen years of
age.
Seventhly.—When she is unable to communicate consent.
Explanation 1.—For the purposes of this section, “vagina” shall also include
labia majora. Explanation 2.—Consent means an unequivocal voluntary
agreement when the woman by words, gestures or any form of verbal or
non-verbal communication, communicates willingness to participate in the
specific sexual act:
Provided that a woman who does not physically resist to the act of
penetration shall not by the reason only of that fact, be regarded as
consenting to the sexual activity.
Exception 1.—A medical procedure or intervention shall not constitute
rape.
Exception 2.—Sexual intercourse or sexual acts 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
in sub-section (2), commits rape, shall be punished with rigorous
imprisonment of either description for a term which 1 [shall not be less
than ten years, but which may extend to imprisonment for life, and shall
also be liable to fine].
(2) Whoever,— (a) being a police officer, commits rape—
(i) within the limits of the police station to which such police officer is
appointed; or
(ii) in the premises of any station house; or
(iii) on a woman in such police officer's custody or in the custody of a police
officer subordinate to such police officer; or
(b) being a public servant, commits rape on a woman in such public
servant's custody or in the custody of a public servant subordinate to such
public servant; or
(c) being a member of the armed forces deployed in an area by the Central
or a State Government commits rape in such area; or
(d) 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, commits rape on any inmate
of such jail, remand home, place or institution; or
(e) being on the management or on the staff of a hospital, commits rape on
a woman in that hospital; or
(f) being a relative, guardian or teacher of, or a person in a position of trust
or authority towards the woman, commits rape on such woman; or
(g) commits rape during communal or sectarian violence; or
(h) commits rape on a woman knowing her to be pregnant; or 2 * * * * *
(j) commits rape, on a woman incapable of giving consent; or
(k) being in a position of control or dominance over a woman, commits
rape on such woman; or
(l) commits rape on a woman suffering from mental or physical disability; or
(m) while committing rape causes grievous bodily harm or maims or
disfigures or endangers the life of a woman; or
(n) commits rape repeatedly on the same woman, shall be punished with
rigorous imprisonment for a term which shall not be less than ten years,
but which may extend to imprisonment for life, which shall mean
imprisonment for the remainder of that person's natural life, and shall also
be liable to fine.
Explanation.—For the purposes of this sub-section,—
(a) “armed forces” means the naval, military and air forces and includes any
member of the Armed Forces constituted under any law for the time being
in force, including the paramilitary forces and any auxiliary forces that are
under the control of the Central Government or the State Government;
(b) “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;
(c) “police officer” shall have the same meaning as assigned to the
expression “police” under the Police Act, 1861 (5 of 1861);
(d) “women's or children's institution” means an institution, whether called
an orphanage or a home for neglected women or children or a widow's
home or an institution called by any other name, which is established and
maintained for the reception and care of women or children. 1
[(3) Whoever, commits rape on a woman under sixteen 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 shall also be liable to 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 sub-section shall be paid
to the victim.]
376A. Punishment for causing death or resulting in persistent vegetative
state of victim.— Whoever, commits an offence punishable under sub-
section (1) or sub-section (2) of section 376 and in the course of such
commission inflicts an injury which causes the death of the woman or
causes the woman to be in a persistent vegetative state, 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, or with death.
2 [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.]
376B. Sexual intercourse by husband upon his wife during separation.—
Whoever has sexual intercourse with his own wife, who is living separately,
whether under a decree of separation or otherwise, without her consent,
shall be punished with imprisonment of either description for a term which
shall not be less than two years but which may extend to seven years, and
shall also be liable to fine.
Explanation.—In this section, “sexual intercourse” shall mean any of the
acts mentioned in clauses (a) to (d) of section 375.
376C. Sexual intercourse by a person in authority.—Whoever, being—
(a) in a position of authority or in a fiduciary relationship; or
(b) a public servant; or
(c) 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 a
women's or children's institution; or
(d) on the management of a hospital or being on the staff of a hospital,
abuses such position or fiduciary relationship to induce or seduce any
woman either in his custody or under his charge or present in the premises
to have sexual intercourse with him, such sexual intercourse not amounting
to the offence of rape, shall be punished with rigorous imprisonment of
either description for a term which shall not be less than five years, but
which may extend to ten years, and shall also be liable to fine.
Explanation 1.—In this section, “sexual intercourse” shall mean any of the
acts mentioned in clauses (a) to (d) of section 375.
Explanation 2.—For the purposes of this section, Explanation 1 to section
375 shall also be applicable.
Explanation 3.—“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 such person can exercise any authority or
control over its inmates.
Explanation 4.—The expressions “hospital” and “women's or children's
institution” shall respectively have the same meaning as in Explanation to
sub-section (2) of section 376.
376D. 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.]
376E. Punishment for repeat offenders.—Whoever has been previously
convicted of an offence punishable under section 376 or section 376A or 1
[section 376AB or section 376D or section 376DA or section 376DB,] and is
subsequently convicted of an offence punishable under any of the said
sections shall be punished with imprisonment for life which shall mean
imprisonment for the remainder of that person's natural life, or with
death.]]
Of Unnatural Offences
377. Unnatural offences.—Whoever voluntarily has carnal intercourse
against the order of nature with any man, woman or animal, shall be
punished with 2 [imprisonment for life], or with imprisonment of either
description for a term which may extend to ten years, and shall also be
liable to fine. Explanation.—Penetration is sufficient to constitute the carnal
intercourse necessary to the offence described in this section.