Position Of Rape Laws In India

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The Indian Penal Code, 1860 (hereinafter IPC), drafted by T. B. McCauley and his colleague law commissioners, reflected the then prevailing sexual norms in India, criminalized ‘rape’ – a coercive non-consensual (as well as consensual in a set of specified circumstances) sexual intercourse with a woman.

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S.375 [1] of the Indian Penal Code describes six circumstances in which the offence of rape is said to be committed. In these, the first and the second clauses are representative of the elements required to constitute the offence of rape and the rest characterizes different situations of consent and its absence in various circumstances incomprehensible or given based on a misconception of a fact by a woman. It is often stated that a woman who is raped undergoes two crises-the rape and the subsequent trial. While the first seriously wounds her dignity, curbs her individual, destroys her sense of security and may often ruin her physically, the second is no less potent of mischief, inasmuch as it not only forces her to re-live through the traumatic experience, but also does so in the glare of publicity in a totally alien atmosphere, with the whole apparatus and paraphernalia of the criminal justice system focused upon her. The main ingredients of rape are namely against will of the woman, without her consent, Consent procured by putting the woman under fear of death or hurt is no consent in law, Consent accorded under a misconception that the person is husband of the woman is not a valid consent, consent procured of a woman of unsound mind or under the influence of intoxication, etc. Most cases of prosecution fail because the victim is not able to prove that she did not consent to the act. The corollary that the judiciary seems to have adopted is that if the woman has failed to ‘resist’ at the time of act’, she is deemed to have consented to the sexual intercourse. The judiciary, again surprisingly has held that lack of any injuries on the body or the private parts is a strong indicator of consent on the part of the woman. [7] Tukaram v. State of Maharashtra [8] has carried the debate on the definition of consent further. This famous (or rather infamous!) case, known by the name of “mathura case” has peculiar facts and different analysis of the same by the High Court on one side and Trial Court and Supreme Court on the other. This case was sought to be covered by the prosecution under cl.3 of the Indian Penal Code. It was alleged that that the victim was made to give consent by putting her in fear of death or hurt. The Sessions Court Judge disbelieved the prosecution story and held that corroborative circumstances lead to the conclusion that while Mathura was there in the Police Station she had sexual intercourse and that in all probability it was with Ganpat.

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