Section 375 Indian Penal Code 1860 (IPC) Definition of 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 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 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 of the body of such woman or makes her do so with him or any other person; or
d. 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:— First.—Against her will.
Secondly.—Without her consent.
Third/y.—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.
Fourth/y.—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.
Fifth/y.—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.
Exception I.—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.'.
Sex with a child is rape
India’s Supreme Court in 2017 ruled that sex with a child is always rape, quashing a clause that allowed men to have sex with underage girls even if they were married to them. While the age of consent in India is 18, there was a clause in India’s rape laws that lowered the age of consent to 15 if the girl was married. But the court has now ruled that the clause is “discriminatory, capricious, and arbitrary”, and “violates the bodily integrity of the girl child”.
“This is a landmark judgement that corrects a historical wrong against girls,” Vikram Srivastava, the founder of campaign group Independent Thought, told the BBC. “How could marriage be used as a criterion to discriminate against girls?”
Girls under 18 will now be able to report their husbands for rape, as long as they lodge a complaint within a year of it happening. Commentators say the ruling will be difficult to enforce in the country, however, due to the high rates of child marriage. India is ranked 10th in the world for child marriage, with an estimated 47% of girls married by the time they turn 18, according to the campaigning organisation Girls Not Brides. Girls are often seen as an economic burden, particularly in poor, rural areas, and many parents marry off their children in the hope of improving their financial security. There is also a shame associated with pre-marital sex that can lead to girls’ parents forcing them to marry their rapists, according to news agency AFP.
Child marriage is a serious barrier for the girls involved, often leading to them dropping out of school to focus on their domestic responsibilities, or suffering health problems from giving birth at a young age. India’s rape laws have, prior to this ruling, specifically excluded married couples. Men can currently still have non-consensual sex with their wives without it being classed as rape. While Wednesday’s ruling represents progress, there are still steps to be taken in criminalising marital rape.
A challenge to the laws on marital rape is currently going through the Indian courts, reported AFP, but the government has said it opposes criminalising marital rape as it would damage the institution of marriage. The government has said that criminalising marital rape could “destabilise” marriages and could be used by wives as “an easy tool for harassing the husbands”.
Death for child rape
India's cabinet on Saturday approved the death penalty for rapists of girls below the age of 12 after Prime Minister Narendra Modi held an emergency meeting in response to nationwide outrage in the wake of a series of sexual assault cases. The executive order amends the criminal law to also include more drastic punishment for convicted rapists of girls under the age of 16, government officials said. India previously launched fast-track courts and a tougher rape law that included the death penalty after a gruesome assault on a young woman shocked the country in 2012, but India's rape epidemic has shown no sign of dying down.
There were 40,000 rapes reported in 2016. The victims were children in 40 percent of those cases. The latest outpouring of national revulsion came after details emerged of the gang rape of an eight-year-old Muslim girl, Asifa, in a Hindu-dominated area of Jammu and Kashmir state. Protests around the country were also prompted by the arrest of a politician from the BJP last week in connection with the rape of a teenager in Uttar Pradesh, a populous northern state that is governed by the party. More recently, a sexual attack on an 11-year-old girl was reported in Mr. Modi's home state of Gujarat. The post-mortem revealed the girl had been tortured, raped, strangled and smothered.
Cases to be completed within two months
The Cabinet also prescribed measures for stronger punishment and faster trials in rape cases, a government document was seen by Reuters showed. In cases of the rape of a girl below the age of 16, the cabinet increased the minimum punishment to 20 years from 10 years. The penalty for the rape of women was raised to 10 years from seven years. The document made no mention of the rape of boys or men.
India's judicial system has been unable to keep up with the growing number of rape cases. The cabinet also recommended mandatory completion of rape investigations within two months and advised that trials should also be completed in two months.”The government has taken serious note of incidents of rape in various parts of the country,” the document said.”While expressing deep anguish over such incidents, it has been decided to devise a comprehensive response to deal with the situation.”
The Cabinet also approved the establishment of more fast-track courts to deal with rape cases, the appointment of more public prosecutors, and ordered police stations to be equipped with special forensic kits, among other steps.
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