Report No. 42

16.111. Recommendation.-

We are of the opinion that a clarification on the point would be useful. Further, we regard the wider view as preferable. This is a beneficial provision, and a wider scope is desirable for effective protection against mercenary exploitation of helpless minor girls. We, therefore commend the addition of an Explanation to section 373 as follows.-

"Explanation III.- For the purpose of this section, it is not necessary that possession of the minor should have been obtained from a third person."

16.112. Section 374.- No changes are needed in section 374.

Sexual offences

16.113. Section 37.-Applicability of section 90 to 'consent' of woman.-

The definition of rape in section 375, which refers to the woman's consent in four of its five clauses, raises the question as to how far, if at all, the general exception in section 90 is applicable in relation to the consent "intended" by the second clause of the definition. Concretely, if the consent is given by a woman, who from unsoundness of mind or intoxication, is unable to understand the nature and consequence of the act to which she has in fact submitted, has the man committed rape? If the second paragraph of section 90 is applicable, such consent must be ignored and the man must be regarded as having had sexual intercourse with the woman without her consent. While there are quite a few English cases leading to this conclusion under the common law of England, the question does not appear to have arisen in any Indian case.1

The special exceptions in the second and third clauses of section 375 obviously do not cover the same ground as the general exception formulated in the first paragraph of section 90. Under section 375 read by itself, it is only when the woman's consent to the act has been obtained by putting her in fear of death or physical hurt, the consent does not count; whereas, under section 90, if she has given her consent under fear of 'injury.-a wider term than physical hur.-to herself or any one else and the man knows that the consent was given in consequence of such fear, the consent does not count.

In a Nagpur case,2 the High Court held that, where the woman had consented or submitted to sexual intercourse with the accused who pretended to have a warrant to arrest and take her to Bombay, and, by that deceit, abducted her to a circuit house for the purpose, the consent was not vitiated by its being given in fear of some 'injury' to herself other than bodily hurt. The applicability of section 90 to the charge of rape in those circumstances was neither raised nor considered in the judgment.

Similarly, under the fourth clause of section 375, only one misconception of fact, viz., the induced belief that the man is her husband, vitiates the consent of the woman; whereas, under section 90, any misconception of fact vitiates, provided the man knows or has reason to believe that the consent was given in consequence of such misconception. Here again, we have no Indian decisions on the applicability or otherwise of the general exceptions to a charge of rape when the particular exception in the fourth clause of section 375 is not applicable.

The third paragraph of section 90 raises no such problem. The minimum age of 'consent' for the offence of rape being specified as 16 in the fifth clause, the 12 year age limit in the general exception does not apply.

It seems possible to take the view that the third and fourth clauses of section 375 relating to fear of hurt and misconception are special provisions and hence exclude the application of the corresponding general provision in the first paragraph of section 90; but the general exception in the second para is not excluded by any thing specified in section 375. We do not, however, consider it necessary to clarify this point by an amendment of that section since no difficulty has been felt in practice.

1. V.B. Raju cites Bhonri, 1953 RLW 254, for the view that "sexual intercourse with a woman under the influence of drink cannot be said to be with consent. (Raju Commentaries on the Indian Penal Code, 3rd Edn., Vol. II, p. 1321). A full report of the decision was not available.

2. Motiram v. State, AIR 1955 Nag 121.

16.114. Consent obtained by threatening death or hurt to another person present on the spot.-

Under the third clause of section 375, the consent of the woman is vitiated only when she has been put in fear of death or body hurt to herself. The clause does not extend to a case where death or grievous hurt is threatened to some one else present on the spot, e.g., the woman's child, parent or husband, and she is thereby compelled to submit to sexual intercourse. Though such cases would be very rare there is no reason in principle why such consent should not be held to be vitiated.

We notice that the definition of rape proposed in the American Draft Penal Code includes the case where the man "compels (the woman) to submit by force or threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on any one."1 We propose to amplify the third clause to cover the cases envisaged above.

1. Section 213.1, clause (1) (a), Model Penal Code.

16.115. Exceptio.-"rape" by husband.-

The exception in section 375 provides that sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape. The punishment for statutory rape by the husband is the same when the wife is under twelve years of age, but when she is between 12 and 15 years of age, the punishment is mild, being imprisonment upto two years, or fine, or both. Naturally, the prosecutions for this offence are very rare. We think it would be desirable to take this offence altogether out of the ambit of section 375 and not to call1 it rape even in a technical sense. The punishment for the offence also may be provided in a separate section.

Under the exception, a husband cannot be guilty of raping his wife, if she is above 15 years of age. This exception fails to take note of one special situation, namely, when the husband and wife are living apart under a decree of judicial separation or by mutual agreement. In such a case, the marriage technically subsists, and if the husband has sexual intercourse with her against her will or without her consent, the cannot be charged with the offence of rape. This does not appear to be right. We consider that, in such circumstances, sexual intercourse by a man with his wife without her consent should be punishable as rape.

1. The marginal heading of section 198A , Criminal Procedure Code, refers to the offence as marital misbehaviour'.

16.116. Sexual intercourse with consenting minor girl to be a separate offence.-

Under the fifth clause of section 375, it is rape for a man to have sexual intercourse with a girl, not being his wife, who is over twelve years but under sixteen years of age, even when she has consented. We are of the opinion that this offence need not be equated to, and punishable as severely as, rape. It sometimes happens in such cases that the man has been led to believe, and in good faith believes, that the girl is over sixteen. A bona fide mistake as to age should be a defence to a charge of rape of this type. We propose, therefore, to deal with this offence in a separate section.

16.117. Section 37.-revision recommended.-

In the light of the above discussion, section 375 may be revised as follows.-

"375. Rape.-A man is said to commit rape who has sexual intercourse with a woman, other than his wife.-

(a) against her will; or

(b) without her consent; or

(c) with her consent when it has been obtained by putting her in fear of death or of hurt, either to herself or to anyone else present at the place; or

(d) with her consent, knowing that it is given in the belief that he is her husband.

Explanation I.- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Explanation II.- A woman living separately from her husband under a decree of judicial separation or by mutual agreement shall be deemed not to be his wife for the purpose of this section."

16.118. Section 376 to be amended.-

In view of the proposed changes in the definition of rape, the latter part of section 376 has to be omitted. Further, in place of the punishment now provided in the section, viz., imprisonment for life or imprisonment of either description for ten years, we propose to substitute rigorous imprisonment for fourteen years. We considered the question whether a minimum sentence of say, three years imprisonment, should be provided for this offence, but decided against it. Adequate punishments are imposed by Sessions Courts by which this offence is ordinarily triable. The section will accordingly read as follows:

"376. Punishment for rape.- Whoever commits rape shall be punished with rigorous imprisonment for a term which may extend to fourteen years, and shall also be liable to fine."

16.119. Prohibition of intercourse by husband with child wife.-

The separate section penalising sexual intercourse by a man with his child wife may run as follows.-

"376A. Sexual intercourse with child wife.-Whoever has sexual intercourse with his wife, the wife being under fifteen years of age, shall be punishe.-

(a) if she is under twelve years of age with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine; and

(b) in any other case, with imprisonment of either description for a term which may extend to two years or with fine, or with both.

16.120. Illicit intercourse with a girl under sixteen.-

The provision against illicit intercourse by a man with a girl under sixteen years of age, with her consent, may be as follows.-

"376B. Illicit intercourse with a girl between twelve and sixteen.- Whoever has illicit intercourse with a girl under sixteen years, but not under twelve years of age, with her consent, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

It shall be a defence to a charge under this section for the accused to prove that he, in good faith, believed the girl to be above sixteen years of age."

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