As we all know rape is considered as a heinous crime in our society. Section 375 of Indian Penal Code defines the offence of rape and its essentials, while section 376 prescribes punishment with death or life imprisonment.
Under section 375 a man commits rape upon a woman under following circumstances:
- Against her will
- Without her consent
- When her consent is obtained by threat or fear of injury to person she is interested in.
- When consent is obtained by fraud or misconception of fact person representing to her as husband.
- With her consent when obtained by reason of unsoundness of mind or state of intoxication
- With or without consent when the age of woman is under 18.
- When she is not able to communicate her interest
After the Nirbhaya Gang Rape case: there have been demand from jurists, social workers to amend the existing laws the old laws did not provide any stringent punishment to the rapist. So the law commission decided to amend existing procedural and substantive rape laws of the country.
Section 376A was added and onus to prove innocence was shifted on the accused and identity of the victim was said to be kept confidential by the courts. Custodial and rape during the judicial separation were also included in the other words the whole rape law was changed.
The Supreme Court in many cases interpreted the section 375 one of the landmark caseÂ Dileep Kumar v/s.; State OfÂ BiharÂ demarcated Against her will means sexual intercourse despite resistance whereas Without her consent means absence of proper deliberation and intelligent case.
The court also held that a false promise to rape does not amount to work if the accused is able to show that his intention was not dishonest from the beginning. Also section 90 cannot be clothed in language to convict the accused section 90 deals with consent given under misconception.
Uday vs. State of Karnataka:
It was the first time Supreme Court held that consent given on false promise to marry cannot come under section 375. It would depend on facts and circumstances of each case like the age, social and educational background of that victim, her status in the society would also be taken in to consideration.
Whereas in State of Uttar Pradesh vs. NaushadÂ held that from the beginning accused did not have intention to marry the victim so the prima facie evidence is against the accused. In my opinion there is a difference between mere breach of promise and false promise to marry the intention will be inferred from the conduct of accused
InÂ Gurmit Singh vs. State of PunjabÂ while holding the accused liable under section 376 consent and submission are not of same meaning. A consent given under force or duress vitiate a valid consent.
It should be noted that penetration is sufficient to constitute the offence of rape
Some landmark cases are Raghubir Singh vs. State of Himachal Pradesh, Mohan Singh vs. National territory of Delhi
After reviewing the landmark cases I have reached the conclusion that sections 375 is a complete rode and section 90 holds no application in the offence of rape. Therefore the law makers have rightly amended the existing rape laws which were repugnant with the social conditions. There have been major developments in the field of law like the minimum punishment for the rape is not less than 7 years. We can only hope from the society that they will be bound by the rules .