User talk:Arghaghosh964

Define rape
'''Q:- a) Define rape . b) Define Consent. c) Critically discuss the law of consent as defence with reference to rape Cases. d) When a person can be said to have committed rape upon his own wife?Bold text'''Answer : - a) Define rape . 	Rape for a woman is deathless shame and must be dealt with as the gravest against human dignity. On the basis of this principle the offence of rape is defined by section 375 of the Indian Penal Code . 	According to this section a man is said to commit rape who, except in the case of sexual intercourse by a man with his own wife not being under fifteen years of age , has sexual intercourse with a woman under the circumstances falling under any of the six following categories :-	Firstly :- Against her will .	Secondly :- Without her consent .	Thirdly :- 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 .	Fourthly :- 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. Fifthly : - 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 any 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 sixteen years of age. It has also been explained by the section that penetration is sufficient to constitute the offence of rape. It has been pointed out by the different Hon’ble Courts in several cases that mere or slightest penetration is sufficient and penetration of the whole male genital organ or emission of semen is not necessary. In fact penetration is the sine qua non for an offence of rape. From the definition given above, it is clear that rape is forcible ravishment of a woman , and the essence of the offence consists in the act being done against the will or without the consent of the woman. In the case of Phul Singh v State of Haryana, Hon’ble Supreme Court of India described that the offence of rape is the violation , with violence , of the private person of a woman. b) Define Consent .	Section 90 of the Indian Penal Code includes definition of consent for the purpose of the code . Section 90 says that a consent is not such a consent as is intended by any section of this code if the consent is given by a person under fear of injury, or under a misconception of fact , or if the consent is given by a person who , from unsoundness of mind , or intoxication , is unable to understand the nature and consequences of that act to which consent is given , or when the consent is given by a person who is under twelve years of age . But section 90 can not be construed as an exhaustive definition of consent in contrast with the offence of rape.	In addition to section 90 of the IPC , Section 375 provides one more ground  to the effect that the consent given by a woman under sixteen years of age is no consent .	The will and consent often overlap. An act done with the will of a person can be said to be an act done with consent. In the purview of the offence of rape, consent means , legal consent or free wilful consent given by a woman of more than sixteen years of age who is capable of understanding the nature of sexual intercourse and its consequences. c)  Critically discuss law of consent as defence with reference to rape Cases.	Rape is an accusation which can easily be made and hard to be proved and harder to be defended by the party concerned, though never so innocent. Yet the question of consent is really a matter of defence and it is for the accused to place materials to show that there was free consent and the girl was not under sixteen years of age. The accused can take the defence that he did sexual intercourse with the woman not being under sixteen years of age and with the free and willful consent of the woman 	Free consent occurs when the woman is capable of knowing the nature of the act and thus legally able, being above sixteen years of age , to give rational consent being aware of it's nature and circumstances .	But under section 114A of the Indian Evidence Act , in a prosecution for rape under clause (a) ,i.e., when a police officer commits rape within the limits of the police station , (b) ,i.e., rape committed by a public servant , or clause (c) ,i.e., rape committed by a man on the management of or custodian of jail , remand home , place or institution , or clause (d) ,i.e., rape committed by a man on the management of hospital , or clause (e) ,i.e., rape committed by a man on a woman knowingly that she is pregnant , or clause (g) ,i.e., gang rape , of section 376 of the IPC , where sexual intercourse by the accused is proved  and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the court that she did not consent , the court shall presume that she did not consent. And so in that event the onus of proof shifts upon the accused to rebut the presumption of non-consent. For determination of the presence of consent of the prosecute in a case of rape, the accused can show that there was free and wilful consent by the following practical circumstances as defence , such as ,--- i) Written communication of the prosecute, ii) Admission of the prosecute to the effect that she had consent. iii) Absence of any injury in the body of prosecute, and iv) Absence of sign of struggle or vehement resistance offered by the prosecut. It may be kept in mind that sexual intercourse without consent does not label a charge of rape against the husband when the wife is above fifteen years of age but below sixteen years of age. d) When a person can be said to have committed rape upon his own wife ? Exception to section 375 provides in negative language that sexual intercourse with the wife, being under fifteen years of age , by her husband , is the offence of rape within the purview of this section . and in that event consent given by the wife for sexual intercourse is not legal consent . This provision is based on the policy of law to protect the children of immature age against sexual intercourse . This is known also as statutory rape by the husband . So when a husband does sexual intercourse with his wife under fifteen years of age , with or without consent , he can be said to have committed rape upon his own wife.