DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

INDIAN PENAL CODE PROJECT

On Topic

CONSENT IN OFFENCE OF RAPE

Submitted To Submitted By

Mr. Malay Pandey Aniket Sachan

Assistant Professor, Law B.A. LLB(HONS)
Dr. Ram Manohar Lohiya IVth semester
National Law University SECTION-“A”
  TABLE OF CONTENTS

Contents
 TABLE OF CONTENTS .......................................................................................................... 2

 INTRODUCTION .................................................................................................................. 3

 CONSENT AS DEFINED IN FOREIGN LAW ............................................................................ 4

 CIRCUMSTANCES UNDER WHICH AN ACT SPECIFIED UNDER SECTION 375 OF IPC WILL
AMOUNT TO RAPE ..................................................................................................................... 4

 AGAINST HER WILL.......................................................................................................... 4

 WITHOUT HER CONSENT ................................................................................................ 5

CONSENT OBTAINED BY PUTTING THE WOMEN IN FEAR OF DEATH OR HURT IS NO

CONSENT............................................................................................................................. 5

CONSENT OBTAINED UNDER MISCONCEPTION THAT THE PERSON IS THE HUSBAND OF

THE WOMAN IS NOT VALID CONSENT. .............................................................................. 5

CONSENT GIVEN BY A WOMEN OF UNSOUND MIND OR UNDER INTOXICATION ............. 5

CONSENT OF A GIRL UNDER 18 IS INVALID ........................................................................ 6

IN CASES WHE THE WOMEN IS UNABLE TO COMMUNICATE CONSENT ........................... 6

 CRITICAL ANALYSIS OF CASES ON CONSENT POST 2013 AMENDMENT ............................ 6

 CONCLUSION ...................................................................................................................... 8

 BIBLIOGRAPHY .................................................................................................................... 9
  INTRODUCTION
Sexual abuse and violence against women has been a major problem since time and ages, but
lately there has been has a significant increase in the cases of rape and sexual assault. When a
woman goes through such sexual and physical abuse, there is not just physical pain that she
faces but it also comes with a lot of mental pain and agony as well. This is the most important
thing that needed to be considered before reforming the rape laws and presenting the Criminal
law (Amendment) Act 2013. Before this amendment there was debate on the definition of rape
in section 375 of the Indian penal code (here in after referred to as IPC). There were several
committees that were set up to look into the laws relating to rape in our country. The 172nd law
commission recommended to replace the definition of rape under section 375 of IPC with that
of the sexual assault.1 This was an attempt to widen the scope of section 375 altogether. After
the brutal Nirbhaya rape case there was an increased demand in lines of the recommendation
of the 172nd Law Commission, the National Commission of Women and the Justice Verma
committee constituted after the above mentioned case also held the same view.

The other contested topic was of consent that when does the court come to the conclusion that
the women consented to take part in the sexual act. There were questions like (a) Does mere
silence amount to consent? (b)Can lack of physical resistance be taken as consent? (c) Can we
go forward with the concept of generalized consent and decide the cases accordingly? and
many more. The only thing that separates an act of rape with the non criminal sexual intercourse
is the victim’s lack of consent.2 In order to prove the offence of rape one of the most important
thing that the prosecution needs to prove is that there was no consent on the part of the victim
and the intercourse was a forced act. Justice Verma committee also recommended that the word
‘consent’ should be properly defined in the IPC so that there is clarity to both the parties as
well as the courts3. The same was incorporated in the Criminal Law (Amendment) Act 2013
and consent has been defined as “Consent means an unequivocal voluntary agreement when
the woman by words, gestures or any form of verbal or non-verbal communication,
communicates willingness to participate in the specific sexual act:

1
172nd Law Commission of India Report, Review of Rape Laws, (2000), available at
http://www.lawcommissionofindia.nic.in/rapelaws.htm#chapter3.
2
People v. Fryman, 4 Ill. 2d 224, 229, 122 N.E.2d 573, 576 (1954), the Illinois Supreme Court stated: "Want of
consent on the part of the prosecutrix is of the essence of the crime of forcible rape”.
3
Report of the committee on Amendments to Criminal Law, headed by Justice Verma, available at
http://www.prsindia.org/parliamenttrack/report-summaries/justice-verma-committee-report-summary-2628/.
Provided that a woman who does not physically resist to the act of penetration shall not by the
reason only of that fact, be regarded as consenting to the sexual activity.”4
In this project main focus has been put on the part of consent and the cases on consent. This
fairly deals with how the courts have interpreted the amended law and what has been the stance
of the courts in such cases. As stated earlier the scope of this project is limited to just the part
of consent and it does not covers the other aspects of the amended rape laws until and unless it
comes under the ambit of consent.

 CONSENT AS DEFINED IN FOREIGN LAW

The Washington state legislature defines consent as, at the time of sexual intercourse or sexual
contact there should be actual word or conduct indicating freely given authority for sexual
intercourse or sexual contact.5 Hence, it focuses on deliberate and clear actions or words or
actual conveying of consent by victim to the accused. The person must have done the act freely
and voluntarily and must have the knowledge of the nature of the act or the transactions
involved.

 CIRCUMSTANCES UNDER WHICH AN ACT SPECIFIED UNDER

SECTION 375 OF IPC WILL AMOUNT TO RAPE
Earlier in order to qualify for rape penetration was necessary but in the amended law, several
other sexual assaults have also been included. However, act done in pursuance of a medical
procedure and sexual intercourse by a man with his wife, not under fifteen years of age is given
as exception in this section.
Now we will discuss about the circumstances under which the aforementioned acts will amount
to rape and this is where we will discuss about consent.

 AGAINST HER WILL

In the case of state of Uttar Pradesh v. Chottey Lal6 Supreme Court explained the meaning of
‘against her will’. It stated that both ‘against her will’ and ‘without her consent’ may overlap
sometime but they are very different in literal sense. Against her will means that sexual
intercourse was done by man despite the resistance of the women. All the acts that are done
without the will are the acts done without consent but the vice-versa is never true.7

4
Section 375(d) of IPC.
5
Wash. Rev. Code Ann. § 9A.44.010(7).
6
Uttar Pradesh v Chottey Lal (2011) 2 SCC 550.
7
Deelip Singh v State of Bihar (2005) 1 SCC 88.
  WITHOUT HER CONSENT
As stated by Supreme Court by referring to the case of People v. Pelvino consent stands for
sane, intelligent and positive ‘will’ of a person.8 Voluntary and positive participation of the
victim is required on the intelligence based on knowledge of the nature of the act and after
having fully exercised the choice between resistance and assent.9 Section 90 of the IPC deals
with consent taken out of fear or under misconception. In Dileep Singh v. State of Bihar. If a
woman gives her consent believing that the man would marry her but in reality the man was a
fraud and never intended to marry then in that case the consent given is not valid consent. When
the victim is a minor or someone who is not in a sane state of mind then the consent obtained
will not be a valid consent. Sexual Intercourse committed will amount to rape.

 CONSENT OBTAINED BY PUTTING THE WOMEN IN FEAR OF DEATH OR

HURT IS NO CONSENT.

To acquit from the charge of rape, the consent of women should be given freely without any
fear of death or hurt.10 The fear of death can also be directed to her close relatives like her
husband or parents or son or brother.

 CONSENT OBTAINED UNDER MISCONCEPTION THAT THE PERSON IS

THE HUSBAND OF THE WOMAN IS NOT VALID CONSENT.

When a man takes the consent of the women on the false promise of marriage then the man can
be convicted of rape under section 375 of IPC.11 Hence, the consent should not be taken by
fraud misconception or deceit by man.

 CONSENT GIVEN BY A WOMEN OF UNSOUND MIND OR UNDER

INTOXICATION

When the women is not in a mental state to think and give a consent for sexual intercourse
when she cannot safeguard her interest then the consent given is not a valid consent. This clause
is to protect the women who without knowing the nature of the act due to unsoundness of mind
or under intoxication because of alcohol or drugs consent for sexual intercourse.

8
People v Pelvino 214 NYS 577.
9
State of HP v Mango Ram (2000) 7 SCC 224.
10
State of Maharashtra v Prakash and Another AIR 1992 SC 1275.
11
Sunil Vishnu Salve & Anr v State of Maharashtra (2005) SCC OnLine Bom 1620.
  CONSENT OF A GIRL UNDER 18 IS INVALID

A girl who is under 18 years of age is considered to be incapable to give consent for sexual
intercourse and in case of sexual intercourse with her with or without consent amounts to rape.
In the case of the 14 year old willing to have sex and gave her full consent for the act still the
accused was convicted of rape under section 365 of IPC.12

 IN CASES WHE THE WOMEN IS UNABLE TO COMMUNICATE CONSENT

This sub-clause of section is open for various interpretations. In my opinion it should refer to
cases when the under any circumstances cannot communicate consent, she might me in sleep
or both the people don’t understand each other’s language or there is some other reason the
person should be held liable for rape if there is no communication of consent.

 CRITICAL ANALYSIS OF CASES ON CONSENT POST 2013 AMENDMENT

We have had done a detailed analysis of what actually amounts to consent according to section
375 of IPC and now we are in a good position to analyse the cases based on consent.

In the case of Swaroop Singh v. State of M.P.13 the victim was raped in the field by the accused
forcibly by threatening her life at knife point. Accused pleaded that there was total ignorance
on his part there was consent on the part of woman and he was falsely implicated. On
examination of evidence the act was performed forcibly against her wish at knife point. There
was no concrete evidence by appellant to counter the allegation and on detailed consideration
of evidence the trail court and later the supreme court came to conclusion that the act will
qualify as rape and the appellant is convicted.

In the cases of Lohiya v. The state of M.P.14 FIR was lodged the mother of the victim against
four unknown person who forcibly abducted her daughter in her home and by the time she
could call others the accused took her daughter and fled away. The accused was arrested after
two months and the victim alleged that in the last two months the man had raped her against
her will several times. Learned counsel of the appellant had argued that the appellant was
wrongly convicted by the trail court. Court referred to the case of Deepak v. State of Haryana15
in this case court stated that in order to draw the presumption against the accused as contained

12
Harpal Singh v State of Punjab AIR 1981 SC 361.
13
Swaroop Singh v. State of MP LNIND 2013 SC 473.
14
Lohiya v The state of M.P. LNIND 2018 MP 2792.
15
Deepak v State of Haryana (2015) 4 SCC 762.
in section 114-A against the accused it is first necessary to prove the commission of sexual
intercourse and secondly that it was done without her consent. Once the victim states that the
intercourse was done without her consent and the offender fails to counter the allegation
sufficiently the court will be entitled to hold that the offender did the act forcibly and without
the consent. The court also referred to the law laid down before that “ no self-respecting women
would make such a grave statement infront of the court against her honour such as she is
involved in the commission of rape on her”. Which makes it necessary to understand that if
there are no compelling reasons for the court to reject her testimony, the court will not under
any circumstances rejectt her testimony. Hence in the present case the appeal was dismissed
the the appellant was convicted for rape.

In the case of Jawahir Chero v. State of U.P.16 again on the basis of facts it was contented by
the appellant that the victim was a major and a consented party. But again court went forward
and took the decision. “A rape not only violates the victim personal integrity but also leaves
marks on the soul of the helpless female that she faces throughout her life and anything said in
defence is not justified”.17

In the one of the most debated case of Mahmood Farooqui v. State (Govt. Of NCT of Delhi)18
the whole debate lies on consent and how the court interprets consent. In the present case the
appellant alleged that there was consent on the part of the victim because she was fully aware
of the drinking habits of the appellant and even when he was heavily drunk she remained in
her company, they had exchanged kisses on earlier occasion. The court in order to decide that
if there was consent or not had taken many facts and situations into consideration. It was
contested by the victim that past physical sexual relation does not matter in order to decide of
a person had given the consent or not. Even if there had been previous sexual encounters
between then it should not effect the fact the she did not consent to that particular act and hence
it would amount to rape under section 375 of IPC. It was contested that any lack of physical
resistance should not be a ground for the court to decide that there was consent on the part of
women.

16
Jawahir Chero v State of UP AIR 2018 ALL 246.
17
Jawahir Chero v State of UP AIR 2018 ALL 246.
18
Mahmood Farooqui v. State (Govt. Of NCT of Delhi) LNIND 2017 DEL 3818.
  CONCLUSION
As we have already discussed earlier that IPC now specifically defines consent and nothing
that does not come in its ambit can form a valid consent. The arguments given by the court are
the ones that show us that post 2013 there has been a drastic change in the rape laws across the
country. The step to change the meaning of rape and make it even broader definitely needs
appreciation. The fact that consent has now been defined makes it very convenient for both the
parties and even the courts to be sure of how to deal with the cases where consent has been
debated. Apart of all this I still believe that more amendments need to be brought and other
loopholes needs to be filled. Even the 2018 amendment brought new changes. In cases of child
aged between 12 and 16, the offence of rape is punishable with the minimum sentence of 20
years, up from 10 years. Maximum punishment in such cases is life imprisonment. If a girl
aged between 12 and 16 is gangraped, the convict faces minimum punishment of life
sentence.If the victim is aged between 16 and 18, the offence of rape is punishable with
minimum punishment of 10-year jail term and maximum is life imprisonment.

The following amendment also wanted to widen the interpretation of rape to include all forms
of penetration to be covered. Therefore, I believe laws can be made much more stringent than
they already are. The definition of rape has been amended to include not just peno-vaginal
intercourse but the insertion of an object or any other body part into a woman’s vagina, urethra
or anus, and oral sex. This responds to a longstanding demand of women’s rights groups. The
issue of rape by different means was highlighted in the Delhi gang-rape case, where an iron
rod was inserted into the young woman’s body.

Despite its flaws, the Act bears a progressive insight to make an impact and fight a battle against
violence against women. However, the Act by itself is not sufficient to redress and seek justice
for violence against women. For this, the Government of India needs to make colossal
investments in building necessary infrastructure to deal with the crimes supplemented by
meaningful reforms in judiciary (building fast track women’s courts, more engagement of
women lawyers, women doctors to examine victims) and modernisation of the police system
across whole of India.
  BIBLIOGRAPHY
REPORTS REFERRED TO:

 172nd Law Commission of India Report

 Justice Verma Committe
 Recommendations of the National Commission for Women

LIST OF BOOKS REFERRED TO:

 KD Gaur, Indian Penal Code

 Kriangsak Kittichaisaree, International Criminal Law

LIST OF ARTICLES REFERRED TO:

 Clare Mcglynn, Rape as ‘torture’? Catherine Mackinnon and Questions of Feminist

Strategy.
 RAPE AS TORTURE

LIST OF STATUTES REFERRED TO:

 Indian Penal Code, 1860

 Sexual Offences Act 2003
 Indian Evidence Act