RAPE (375-376E)
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- Опубликовано: 18 сен 2024
- The offence of rape falls in the category of ‘sexual offences’ under Chapter XVI of the Penal Code-Offences Affecting Human Body. Its definition falls only under section 375 but follows a very expansive scheme of punishments under Section 376 [under 376 (1), 376 (2), 376 (3), 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB and 376E]. The major amendments of 2013 and 2018 have substantially changed the criminal law with respect to rape, especially with the provisions for enhanced punishments.
India’s rape laws are not gender-neutral. The law clearly specifies the victim to be a female only and the perpetrator be a man only. Medical procedures and interventions are not the acts of rape (Exception 1). Further, sexual intercourse with one’s own wife (not below 15 years), does not amount to rape, although a healthy debate for marital rape has already invigorated in India’s erudition and discourses in this context.
It is very vital to bear in mind that Exception 2 of Section 375 was read down by the Hon'ble Supreme Court in Independent Thought v. Union of India (2017) 10 SCC 800. The Court said that this provision defies the spirit of several enactments that endeavour either to prohibit or create impediments to child marriage by legitimizing this regressive practice and thereby also signifying the State’s acquiescence to it. It creates, the court said, an unnecessary, artificial and arbitrary distinction between married and unmarried girl children, since members of neither class can consent in law, yet husbands who have forcible sexual intercourse with their wives belonging to the former class cannot be penalized. This, the Court held, was an unreasonable classification under Article 14 (right to equality) of India’s Constitution, as it had no rational nexus with any clear objective sought to be achieved. Thus, the Court read down Exception 2 to Section 375 holding that it violated Article 14 (right to equality), 15 (non-discrimination) and 21 (right to life) of the Indian Constitution. As a result, a man who rapes his wife is now exempted only if she is not below eighteen years of age which forms the matrix for another legal debate called "marital rape".
S. C , in Independent Thought vs UOI 2017 held, that sexual intercourse with minor( below 18 years ) wife is a "rape " . The court read down the exception 2 to section 375 which allowed such a sexual act . My question is if in future such situation arises will this case law be given superiority like as precedent over exception 2 because it has been read down. further where law gives protection to women it also guards men . Few days ago j&k court ( District court)take cognizance of case filed by "husband " against wife under protection of women against domestic violence act, . Secondly you said cl 6th to be quite contradictory to exception 2 . I think it is not so because exception 2 is clear in itself or qualified by the word (to his own wife )not under the age of 15 years . And in cl 6th it can be any women . It is not confined to one's own wife . I may be holding wrong notion of it and can be rectified if so.
You have made a very valid point. I had, for the reason of inadvertence, forgotten to mention that in the oral lecture. That is why I had updated that in the description of the lecture later on. I *thank you* for bringing this point even here. I will pin your comment for the reason that this lecture seems incomplete and devoid of some sense unless I do that. Thanks again.
Now to your queries and other points, one by one:
The point regarding the reading down of *Exception 2* by the Hon'ble Court is that it has only been *read down* and not constitutionally struck down [n entirety; as in the case of Section 303 IPC in Mithu v State of Punjab (1983)]. So, an accused cannot claim immunity under the Exception anymore in case his wife is below 18 years insofar the clause has been read down to that effect. However, in case a wife being above eighteen the Exception still holds good (as law). This said, the investigation authorities have often been found lacking proper knowledge and understanding of the read down provisions as it has been observed that they tend to book people even under laws which have been declared constitutionally ultra vires by the Courts. For example, the recent case of Supreme Court expressing its dismay over police booking people under section 66A of the IT Act despite the Supreme Court striking it down in Shreya Singhal Case (Shreya Singhal v. Union of India AIR 2015 SC 1523). However, as an intelligent and smart counsel, no advocate will fail to save his client from the caprice of such actions;
I am not much updated about the case of District Court (if any ) doing that. To my understanding, it is, though res integra, an overuse of jurisdiction which does not come within the purview of the Domestic Violence Act. The Act clearly aims at protection women only as the long title itself suggests. Further, the definition of "aggrieved person" under Section 2(a) of the Act clearly leaves behind any scope of a male being a victim by exclusively mentioning women. If I had more details about the case (if any), I would have been in a better position to speak more elaborately;
Regarding the last query, my point was to buttress that Exception 2 of Section 375 seems somewhat to be antithesis of clause 6. This opinion stems from the logic that clause 6 nullifies and declares completely irrelevant, the consent of a woman under eighteen years; hence creating a class on the basis of minority. However, Exception 2 further creates a class within this class and takes them out of the purview of the protection of the main provision. That said, if we analyse the judgement of Independent Thought v. Union of India in its details, it is clear that Deepak Gupta and Madan B Lokur JJ. based their judgements, inter alia on this argument largely.
Though no quantum of gratitude is going to suffice, I thank you again for bringing this up.
@@StareDecisis you don't need to say thanks it will be deemed as insult to your student . I am your student. Whatever amelioration I am feeling is only because of this teacher . Rather I am highly indebted by your lectures . I can't bear it but , can pray God to reward you from one of his bestest bounties . You deserve respect only . Stay safe sir!!!
I apologise for the hoarse and husky voice. I had a marathon of lectures for the day. So the voice started to sunken as the day progressed.
Sir will you elaborate exception 2 ?
And it is immaterial, if a women under the age of 18yrs gives her consent or not.
As per my opinion sir the Exception 2 and sixthly (circumstance) of section 375 they are inconsistent with each other...
Will you elaborate the same plz....
Fine Mudassir. You have a valid point. Exception 2 apparently might seem contradictory to clause (6) of the section. However, exceptions are read and applicable with an overriding effect upon the main provisions against which they have been carved out or incorporated. For example, if I say, I will give you a rupee on each day of a week and then write as an exceptional clause that this shall not include the first and the last Monday of every month; as per this you will have a rupee on each day except on two Mondays of every month (first and last). This follows that exceptions are read and understood to be in co-extension of the main provision to enable a better understanding.
Now back to the provision, ordinarily consent of any female, being a minor, below eighteen, is immaterial and as such any act of sexual intercourse with such a female with or without her consent is a rape {clause (6)}. Further, since the society has been and continues to be prevalent with cases of child marriage and there are laws in place to stamp out the menace, but prosecuting such husbands for rape would be bit harsh and cruel application of laws. That is why exception 2 says that such acts by a man with his own wife (who is above 15) doesn't constitute rape.
Needless to say that it is this clause which has been the centre of focus and attention for the debates related to 'marital rapes'. Though the Exception was read down by the Supreme Court in the case of Independent Thought v. Union of India; it still remains a law in case of a women being a wife above eighteen years of age.