Introduction

Any type of violence against women is a violation of their fundamental right to life and liberty, guaranteed under Article 21 of the Indian Constitution. The state has a responsibility to establish conditions that allow women to engage equally in all activities without fear of bodily or psychological harm. Rape is one of them and is a crime against humanity, but women in India are frequently accused of engaging in many forms of violence in society. Although it might not necessarily kill a woman right away, it undoubtedly leaves her with lifelong physical, mental, and psychic scars. After being raped, a lady must rebuild her confidence and resolve to face the world after years pass.  Since the beginning of time, there have been crimes involving sex.

Promiscuous sexual activity is nevertheless common in today’s and yesterday’s civilized society, even though some forms of it are frowned upon, deemed immoral, and discouraged from taking place. However, if the sexual activity is consensual, or approved by both individuals, it is not against the law.

Prostitution is the most obvious example, while incest is the most detested. Prostitution is prohibited in some jurisdictions, and incest is a criminal in another. However, since prostitution and incest involve voluntary sexual activity, they are not illegal in the majority of societies, regardless of how morally wrong they may be. But it is against the law everywhere. Rape is classified as a criminal offence. The situation is unchanged, with the exception that rape is not committed if the wife is underage for puberty and there is no sexual contact without her agreement, even when it occurs against her will or under duress (according to Indian law under the age of fifteen years).A guy receives a licence for sexual encounters through marriage, making consent irrelevant in this situation. In India, physical contact between a husband and his wife is entirely legal and highly preferred.

Meaning of Rape

Rape is defined as sexual intercourse by a man with a woman without that person’s consent. It is a form of sexual violence and can have a lasting impact on the victim’s mental and physical health, as well as their ability to trust and feel safe in future relationships. There are many myths and misconceptions about rape, which can make it difficult for victims to come forward and get the support they need. It’s important to remember that rape is never the victim’s fault – no matter what they were wearing, how much they had to drink, or whether they said ‘no’ or fought back. Raju v. State of Karnataka in this case there was a lady who was working as a nurse. One day she was going to a village for attending a marriage of her brother at Sakleshpur. In the bus two young men were sitting behind her and were talking to her now and then. After that they suggested her to take launch and promised her to send her in her village timely then they went to the house of Marigudi for meal but sine no food was available there, they all went to a B. G. K. Lodge, Marigudi accompanying them. But after taking meal they gagged her with a handkerchief and all raped her. But somehow she was able to take out the gag from her mouth and screamed on hearing her screams the other persons available there. Here the case of Ravishment of the said lady was established.¹

¹ Act No. 43 of 1983. It overhauled the Law relating to rape. It widened the ambit of rape and provided suffer punishments thereof.

Essential ingredients

Section 375 defines the offence of rape², while section 376 prescribes the punishment for rape, The following are the essential ingredients of the offence of rape:

1. There must be sexual intercourse with a woman by a man;
2. Such a sexual intercourse should be under any of the following circumstances:
   1. Against her will;
   1. Without her consent;
   1. With consent obtained under fear of death or hurt;
   1. With consent given under misconception of fact that the man is her husband;
   1. Consent given by reason of unsoundness of mind, intoxication or under influence of any stupefying or unwholesome substance;
   1. With a female under 16 years of age, with or without consent.

Factors responsible for Rape

The first factor is the position of power or authority that the man holds over the woman. This can be in the form of a job, family relationship, or social status. The second factor is the age difference between the two individuals. It is generally seen that older men tend to abuse their position of power to exploit younger women. The third factor is the absence of consent from the woman. In most cases, it is seen that the victim does not give her explicit consent for sexual intercourse and is forced to do so against her will. The fourth factor is the use of force or threat by the perpetrator. In many cases, it is seen that rapists use physical force or threats to coerce their victims into submission. The fifth and final factor is the mental state of the victim at the time of rape. It is often seen that victims who are mentally incapacitated or have low self-esteem are more likely to be raped than those who are mentally stable and have high self-esteem. The position of power or authority that a man holds over a woman may give him a sense of entitlement to her body, which may lead to rape. The fear of reprisal from a man in a position of power or authority may deter a woman from reporting rape. The social stigma attached to rape may prevent a woman from coming forward and filing a complaint.

Section 375 provides a good idea concerning the concept of rape underneath IPC and its relevant provisions. Also, the penalization for such a criminal offense. Section 376B puts additional light on that and provides for penalization for such activities if done by a husband to his spouse when separated. Whoever has sex together with his own better half, who is living independently, no matter whether underneath an announcement of partition or something else, while not her assent, are going to be rebuffed with the detainment of one or the other portrayal for a term which cannot be under 2 years however which can stretch out to seven years, and can likewise be obliged to fine. So primarily, Section 376B talks partner the sexual intercourse by the mate upon his significant other throughout detachment or any quite

² Subs: For Section 375, 376, 376-A, 376-B, 376-C and 376-D by the Criminal (Amendment) Act 2013 (13 of 2013) Section 9C (w.e.f. 3-2-2013).

partition or the period of separation. For e.g.: there’s a case filed for divorce by a couple and through the separation period, the husband has intercourse together with his spouse. Upon grievance by the spouse, the husband shall be held guilty. This section was created with a view of ladies practicing their privileges that include the significance of consent. Consent plays a key role in this section. defensive the pride of women and giving them right against their own better half who is isolated and who is making an attempt to make up a physical or sexual relationship without her consent are going to be charged with the detainment of   2   years   which might be stretched to as long as seven years and with fine In the Case of Omkar Prasad Verma V. State Of Madhya Pradesh An administration educator Omkar Prasad was an appealing party in this case, who was supposedly suspected of the offense of an assault on a student. He was charged under section 376B. The court aforesaid that to convict anybody underneath section 376B, the casualty ought to be under the guardianship of the denounced. In this case, it had been seen that the accused had sex with the scholar and it’s the fact that educators are community workers however all the scholars aren’t under the authority of instructors. The care ought to be legitimate, which implies guardianship. The court in addition processed that if a teacher and student become lovers and therefore the teacher did not exploit his position then it will not measure offense talked concerning under section 376B.³

Essentials Factors of Section 376B:

1. Such intercourse ought to occur while not the consent of the spouse.

• Such incidents ought to occur solely throughout the separation period.

• in this section, “sexual intercourse” shall mean any of the acts mentioned in clauses (a) to (d) of Section 375 that are as follows:

1. Infiltrates his penis, to any degree, into the vagina, mouth, urethra, or butt of a girl or makes her do intrinsically with him or another individual; or

• Embeds, to any degree, any article or a piece of the body, not being the erectile organ, into the vagina, the urethra or butt of a girl or makes her do intrinsically with him or another individual; or

• Controls any piece of the body of a girl so as to cause infiltration into the vagina, urethra, rear-end or any piece of a collection of such woman or makes her do as such with him or another individual; or

• Applies his mouth to the vagina, butt, urethra of a woman or makes her do intrinsically with him or another individual, considering the current scenario falling below any of the related to seven descriptions:

1. Without wanting to do it.
   1. Without her consent.
   1. With her consent, once her assent has been obtained by inserting her or any person in whom she is intrigued, in dread of death or of hurt.

³ https://indiankanoon.org/doc/1091455/ , CASE NO.: Appeal 293 of 2007

• With her consent, once the person realizes that he’sn’t her lover and that her assent is given since she accepts that he is another man to whom she is or trusts herself to be lawfully married.
  • With her consent when, at the hour of giving such assent, by reason of she cannot perceive the nature and results of that to which she offers consent.
  • With or while not her consent, when she is under eighteen years old.
  • At the point when she cannot convey consent.

• This part is summoned simply when the partner is living either independently or has a declaration of judicial partition.

• The foremost vital ingredient is that this act should be done by a person to his own partner with whom he was married and later on isolated or separated. Sex with the other individual’s spouse does not get coated with this section. This section is particularly for a couple who got isolated.

Conclusion

Just one answer isn’t sufficed to unravel the whole drawback. Everything ought to be modified, the mental attitude of the people and the way of treatment for male and feminine in India, their upbringing to the concern of police and penalization, our system of working, and respect for the opposite gender. Still in India, girls since childhood ought to sacrifice as sisters for her brother, as married women for her husband, as mothers for her son. It is duty absolute to look out of household work when she gets older. After the wedding she has got to work in line with her husband. It’s not that only men teach this within the family; however additionally mothers, mothers and grandparents do similar things. So feminine are equally answerable for all. Not only men but girls are also against girls, so need of hour to change the mentality of the whole community and additionally unfold awareness equally to male and female.

By:

Prabhjot Singh

BBA LLB, Galgotia University