Definition of Rape

A man is said to commit "rape" if he:

• Penetrates his penis, to any extent, into the vagina, mouth, urethra, or anus of a woman or makes her do so with him or any other person; or
• 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 do so with him or any other person; or
• Manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus, or any part of the body of such woman or makes her do so with him or any other person; or
• Applies his mouth to the vagina, anus, urethra of a woman or makes her do so with him or any other person, under the circumstances falling under any of the following seven descriptions:

Conditions of Rape

Rape is considered under the following circumstances:

• Against her will.
• Without her consent.
• 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.
• 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.
• 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.
• With or without her consent, when she is under eighteen years of age.
• When she is unable to communicate consent.

Explanations

For the purposes of this section, "vagina" shall also include labia majora.

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. A woman who does not physically resist the act of penetration shall not, by reason only of that fact, be regarded as consenting to the sexual activity.

Exceptions

A medical procedure or intervention shall not constitute rape.

Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.

IPC 375 in Simple Words

According to section 375 of the Indian Penal Code, "rape" is committed when a man engages in non-consensual sexual activities with a woman, which includes penetration or insertion of objects, manipulation of body parts, or using his mouth against her will, without consent, or in cases where the woman is unable to communicate consent or is under eighteen years of age. There are also certain exceptions like medical procedures and consensual sexual acts within marriage when the wife is not under fifteen years of age.

Section 375 - Rape

The fourth most common crime against women in India is rape. According to the 2013 annual report of the National Crimes Records Bureau (NCRB), in 2012 over 24,923 cases of rape were reported across India, out of which 98% of the cases had someone known to the victim as the accused.

As a large number of cases go unreported in India, it has been characterized as one of the countries with the lowest per capita rates of rape being reported. However, in recent years, the willingness to report rape cases has increased as several incidents of rape have received extensive media attention and have stimulated public protest, which ultimately led to reforming the rape laws by the Government of India.

What Amounts to Rape Under Section 375?

Rape under section 375 of the Indian Penal Code includes any of the following acts by a man against a woman:

• Penetration of a man’s sexual organ (penis) into a woman’s mouth, vagina, urethra, or anus or making her do so with him or someone else;
• Inserting any object, except the penis, into a woman’s vagina, urethra, or anus or making her do so with him or someone else;
• Manipulating 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 him or someone else;
• Applying his mouth to a woman’s vagina, urethra, or anus or making her do so with him or someone else.

The abovementioned acts must take place under the following circumstances to constitute rape:

• Against her will;
• Without her consent;
• With her consent, if such consent is obtained by causing her fear of death or hurt for herself or for someone she knows;
• With her consent, if she believes the man she is engaging with sexually is her husband;
• With her consent, where due to unsoundness of mind or intoxication, the woman is not able to fully understand the nature and consequences of the act she consents to;
• With or without the consent of a woman who is below 18 years of age;
• When the woman is unable to communicate consent.

Consent as Mentioned Under Section 375

Consent is defined as clear, voluntary communication that the woman gives for a certain sexual act. Lack of physical injuries from the incident does not imply that consent was involved. Medical procedures or interventions do not constitute rape in the absence of consent.

However, marital rape, i.e. rape by one spouse of another, is an exception to giving consent as marital rape is not a crime under the Indian Penal Code, as long as the woman is above 15 years of age. In October 2017, the Supreme Court stated that the act of sexual intercourse by a husband with his wife who is under the age of majority (18 years) would also be treated as rape. The apex court also changed the age for consent from 15 to 18 years.

Exception to Section 375

Sexual intercourse or sexual acts by a man with his own wife, the wife not being under sixteen years of age, is not sexual assault. Since child marriage in India is not yet void and is only voidable, such a check was necessary to restrain men from taking advantage of their marital rights prematurely. No man is guilty of rape on his own wife under the Indian Penal Code when she is over 15 years of age on account of the matrimonial consent that she has given.

In a case where a girl below the age of 15 was sent by her father to accompany the relatives of his elder daughter’s husband to look after her elder sister for some time, was forcibly ‘married’ to the appellant and had sexual intercourse with her, the accused was held liable for rape under section 376.

However, under section 376 B of IPC, sexual intercourse with one’s own wife without her consent under a decree of judicial separation is punishable by 2 to 7 years imprisonment.

Amendment to Section 375

The Criminal Law (Amendment) Act, 2013, also known as the Nirbhaya Act, is Indian legislation passed to amend the Indian Penal Code, Indian Evidence Act, and Code of Criminal Procedure concerning laws related to sexual offences. The Bill came into force on 3rd April 2013, in light of the protests following the 2012 Nirbhaya rape case.

The most important change was the change in the definition of rape. The law also now recognizes a wider range of sexual crimes, including acid attacks and stalking, and provides for stricter punishment for offenders.