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Rape Jurisprudence in India
Rape is one of the serious offences. Over the years rape jurisprudence has undergone a lot of changes. Through various amendments and case laws, the definition of rape has been changed and interpreted in a progressive way. Major changes to rape law were made in 1983 and 2013. Rape has been defined under section 375 IPC. Prior to 2013, the Indian Penal Code (IPC) defined rape as sexual intercourse by a man with a woman without her consent. There were five other circumstances. "Sexual intercourse" was not defined in the IPC. Courts understood “sexual intercourse” to mean penile-vaginal penetration and further ruled (based on the wording of the section) that ejaculation is not required for intercourse to be rape. However, after the amendment of 2013, the definition of rape goes beyond penile-vaginal penetration.

Till 1983 amendment
The landmark case was that led to the amendment of 1983 was the Mathura judgement. According to Vrinda Grover, this was "the first case that led to public protests and a reform of the law". The judicial approach till 1983 was as follows:

Rao Harnarain Singh v. State (1957)
This case distinguished between "consent" and "submission". The court said that a woman consents only when she freely agrees to submit herself, while in free and unconstrained possession of her physical and moral power to act in a manner she wanted. Consent may be either expressed or implied depending on the nature and circumstances of the case.

In this case, tenant of the accused was required to provide his wife to satisfy the carnal lust of the accused Rao Harnam Singh and his guests on the eve of entertainment party arranged on the occasion of the transfer of Ch. Mauji Ram, Dy. Superintendent, Jail, Gurgaon. The women protested vehemently against this outrageous demand, but under pressure from her husband, was induced to surrender. Three accused persons- Rao Harnarain Singh, Ch. Mauji Ram and Balbir Singh raped her during the night and she died almost immediately.

The contention raised in this case was that since the woman consented and  surrendered her body to the three persons willingly and with the approval of her husband, therefore it was not rape. The Punjab High Court in this case, however, held the accused liable by distinguishing between 'consent' and 'submission. Punjab HC said :
 * 1) "A mere act of helpless resignation in the face of inevitable compulsion, quiescence, non-resistance, passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be ‘consent’ as understood in law.
 * 2) Consent on the part of a woman as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge, of the significance and moral quality of the act, but after having freely exercised a choice between resistance and assent.
 * 3) Submission of her body under the influence of fear or terror is no consent. Although each consent involves a submission, the converse does not follow and a mere act of submission does not involve consent. "

Pratap Misra And Ors. vs State Of Orissa  (1977)
To decide the consent of women during sexual intercourse, the judiciary has structured the consent of the women by keeping women’s consent and her character interdependent, presuming her to be unchaste, and presuming that her bad character and consent is proved by showing that she dd not show outward signs of struggle and resistance. In this case, court applies one of these way to determine consent.

In this case, the woman, who was 5 months pregnant at the time of the incident was gang-raped by the three defendants. As a consequence of the rape, the woman miscarried a few days later. The Court, holding that the victim had consented to intercourse with the three men with the connivance of her husband, acquitted the defendants. It arrived at this conclusion since she did not have injuries on her body, and had only sobbed and not screamed during intercourse. The Court also opined that if intercourse were by force, the fetus would have been immediately aborted and not after a few day. Court also said that resistance is one of the essential features to determine consent was not present.

''“the prosecutrix was a fully grown up lady and habituated to sexual intercourse The opinion of medical experts shows that it is very difficult for any person to rape single handed a grown up and an experienced woman without meeting any stiffest possible resistance from her. There were no injury marks on the bodies or the sexual organs of the accused.”''

Tukaram vs State Of Maharashtra (1978)
In this case, a girl named Mathura was raped by two policemen when she went to the police station with her brother for testimony. Victim's brother had filed a FIR that she had been kidnapped by her boyfriend and his relatives. When she was coming back, she was separated from her relatives and was allegedly raped by two policemen. It was found medically that at the time of the incident she was not a virgin. The trial court, while acquitting the two men, termed Mathura a ‘shocking liar’ and disbelieved her evidence, stating that ‘[t]here is a world of difference between sexual intercourse and rape’.

''He further held that she was "a shocking liar" whose testimony "is riddled with falsehood and improbabilities". But he observed that "the farthest one can go into believing her and the corroborative circumstances, would be the conclusion that while at the Police Station she had sexual intercourse and that, in all probability, this was with accused No. 2. He added however that there was a world of difference between "sexual intercourse" and "rape"..... Mathura was habituated to the sexual intercourse.''

This was done while looking the past sexual history of Mathura. And, the courts were hesitant to place implicit reliance on the testimony of the prosecutor. The HC on appeal reversed the decision, but on appeal to SC the Court decided in favour of the accused.

SC while overturning the decision of HC said that there were no injuries on her body and because the episode had been a ‘peaceful affair’. It also opined that Mathura had probably ‘invented the story’, and that she had had consensual intercourse with the policemen.

Few days after the verdict, law professors Upendra Baxi, Raghunath Kelkar, Lotika Sarkaar and Vasudha Dhagamwar wrote an open letter to the Supreme Court, protesting the concept of consent in the judgment. In this letter, they said that court has upheld the civil liberties of affluent urban women like Maneka Gandhi and Nandani Satpathy, however at the same time condemning the ‘illiterate, labouring, politically mute Mathuras of India’ to 'their pre-constitutional fate'. This also case also moved people and eventually leading to the amendment of 1983.

Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (1983)
The case involved the sexual abuse of two 10-year-old girls one of whom had been raped by their friend’s father in Gandhinagar. It became a landmark judgement when the SC declared that the survivor’s sole testimony was enough to convict the accused. Though the SC has changed the trend of not placing reliance on the testimony of victim but, it seems to have stereotyped Indian and Western women in a somewhat unorthodox way. The court in this case list down the reasons why in the Western Society that a female may level false accusation as regards sexual molestation against a male. Some of these reasons include that a woman may make a charge of rape on account of jealousy, to win the sympathy of others, to satisfy the feeling of self-importance etc.

The Court at the same time listed reasons as to why a girl or a woman in India rarely will make false allegations of sexual assualt on account of any such factor. Some of these reasons include females in a tradition-bound non-permissive society of India would be extremely reluctant, conscious of the danger of being ostracised by the Society, she would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered etc. The Justice Verma Committee critiqued the approach of the SC and said: "listing of these characteristics, we regret that there is a profiling of an Indian girl which has taken place which is an over generalisation and it would neither be accurate nor scientific to test the testimony of an Indian women with reference to the criteria which are mentioned in paragraph 10 above. But what is important is that the judgement, in a certain sense, discloses how a woman is viewed in India".

State Of Maharashtra vs Chandraprakash Kewal Chand Jain (1990)
In this case, the defendant was a police officer who was charged with the crime of rape committed upon a woman in his custody. In this case, the trial court rejected the testimony of the woman because it was not corroborated. The Supreme Court om appeal said that the degree of proof required with respect to the testimony of a woman in a rape case should not be any higher than that required of a woman in a case involving violent crime. "'A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If a prosecutrix is an adult and of full understanding the court is entitled to base a conviction of her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence'."So, the Court ruled that the past sexual history of a women is not important and reliance can be placed on the testimony of the prosecutrix.

The State Of Punjab vs Gurmit Singh (1996)
A young girl under the age of 16 years was abducted from her school by the three accused in a car, and she was threatened with death if she raised an alarm. Due to the threat she kept quiet. After repeatedly committing sexual assault on her, they left her the next morning near the place from where she had been abducted. The trial court acquitted all the accused on both counts of abduction and rape disbelieving the version of prosecutrix regarding rape and because of delay in FIR.

Allowing the appeal, and holding the accused persons liable for rape, the Court ruled that since at no point of time had the prosecutrix willingly cooperated with the act, the Apex Court held that the sexual intercourse was against her will for which the accused were liable for committing rape under section 376, IPC. In this case the principle laid down in Chandraprakash Kewal Chand Jain was reiterated and in addition to this, the Apex Court laid down the following guidelines for trial in such cases :
 * Delay in lodging FIR is not material when properly explained.
 * Testimony of victim in cases of sexual assault is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Court should find no difficulty in convicting the accused on prosecutrix’s testimony alone.
 * Trial of sexual offences should be in camera and invariably by a lady judge whenever available.
 * Court must restrain making observations that probably the prosecutrix is a girl of loose moral character.
 * Court is under an obligation to see that prosecutrix is not unnecessarily harassed and humiliated in cross-examination in case of rape trial

Smt. Sudesh Jhaku vs K.C.J. (1996)
In this case, father was accused of forcing his daughter to have oral sex with him. This led to the question of increasing the scope of definition of rape. Rape" as defined in Section 375 of the Indian Penal Code was confined only to penile penetration of the vagina. The petitioners (the mother of the child) argued that penetration of a bodily orifice (vagina, anus or mouth) by a penis or other part of the body, or by an object should also be considered as Rape.

Sakshi v. Union of India  (2004)
The question that was raised in the Sudesh Jakhu case was taken forth by this case. Sakshi, an NGO focusing on violence against women, petitioned the Supreme Court of India to declared that “rape” under India’s criminal rape law (Indian Penal Code, or “IPC”, section 375) includes all forms of forcible penetration. Sakshi claimed that the current interpretation of the law, limited rape to forcible penile/vaginal penetration only. The prosecution submitted that Section 375 IPC should be interpreted in the current scenario, especially in regard to the fact that child abuse has assumed alarming proportion in recent times. The words ‘sexual intercourse’ in Section 375 IPC should be interpreted to mean all kinds of sexual penetration of any type of any orifice of the body and not the intercourse understood in the traditional sense. The words ‘sexual intercourse’ having not been defined in the Penal Code, there was no impediment in the way of the Court to give it a wider meaning so that the various types of child abuse may come within its ambit and the conviction of an offender may be possible under Section 376 IPC.

''“The suggestions made by the petitioners [Sakshi] will advance the cause of justice and are in the larger interest of society. The cases of child abuse and rape are increasing at alarming speed and appropriate legislation in this regard is, therefore, urgently required. We hope and trust that the Parliament will give serious attention to the points highlights by the petitioner and make appropriate legislation with all the promptness which it deserves.”''

During the Sakshi case, the Court ordered the Law Commission of India to examine and respond to the issues that Sakshi raised. This exercise culminated in the 172nd Report of the Law Commission of India (on review of rape laws, March 2000). This case leads to 2013 amendment.

"The writ petition is accordingly disposed of with the following directions :

(1) The provisions of sub-section (2) of section 327 Cr.P.C. shall in addition to the offences mentioned in the sub-section would also apply in inquiry or trial offences under sections 354and 377 IPC.

(2) In holding trial of child sex abuse or rape :

(a) a screen or some such arrangements may be made where the victim or witnesses (who may be equally vulnerable like the victim) do not see the body or face of the accused;

(ii) the questions put in cross-examination on behalf of the accused, in so far as they relate directly to the incident, should be given in writing to the President Officer of the Court who may put them to the victim or witnesses in a language which is clear and is not embarrassing;

(iii) the victim of child abuse or rape, while giving testimony in court, should be allowed sufficient breaks as and when required.

These directions are in addition to those given in State of Punjab v. Gurmit Singh."

Independent thought v Union of India (2017)
On 11 October 2017, the SC gave a landmark judgement and declare sexual intercourse with a minor wife would, henceforth, be considered rape, provided a court took cognisance of the matter within a year of the commission of the offence. In this case the petitioner was a society working in the area of child rights. The society filed a petition under Article 32 of the Constitution in public interest with a view to draw attention to the violation of the rights of girls who are married between the ages of 15 and 18 years.

Before this judgement, Section 375 of the IPC provided for three circumstances relating to ‘rape’. Firstly sexual intercourse with a girl below 18 years of age is rape (statutory rape). Secondly and by way of an exception, if a woman is between 15 and 18 years of age then sexual intercourse with her is not rape if the person having sexual intercourse with her is her husband. Her willingness or consent is irrelevant under this circumstance. Thirdly sexual intercourse with a woman above 18 years of age is rape if it is under any of the seven descriptions given in Section 375 of the IPC (non-consensual sexual intercourse). The Court ruled:

"we are left with absolutely no other option but to harmonize the system of laws relating to children and require Exception 2 to Section 375 of the IPC to now be meaningfully read as: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.” It is only through this reading that the intent of social justice to the married girl child and the constitutional vision of the framers of our Constitution can be preserved and protected and perhaps being impetus."

Court, therefore to harmonise it with POSCO, read down the exception to section 375 and said “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”