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43 JILI (2001) 25
'Rape' and the Penal Code, 1860 at the Crossroads of the New Millennium:
Between Patriarchiast and Gender Neutralist Approach
‘RAPE’ AND THE PENAL CODE, 1860 AT THE CROSSROADS OF THE NEW MILLENNIUM:
BETWEEN PATRIARCHIAST AND GENDER NEUTRALIST APPROACH
by
K.I. Vibhute*
I Introductory remarks
CRIMINAL LAW of a country, in its quest to preserve social order and solidarity, not
only prescribes a set of norms of human behaviour but also forbids the human conduct
that exhibits disrespect to these norms. It also stipulates punitive ‘sanction’ for the
perilous outlawed conduct.
However, the kind of conduct to be ‘forbidden’ and of the formal penal ‘sanction’
considered as best calculated to prevent the officially outlawed conduct depend upon
the ‘social setting’ and ‘socio-moral-legal ethos’ of a community. Nature and contents
of criminal law and social (punitive) reaction to the violation of penal law, therefore,
vary with changes in socio-politico-moral ‘settings’ and ‘legal ethos’. Penal law of a
country, therefore, needs to be appreciated and understood in the backdrop of its
prevailing social, moral & cultural values and political ideologies.
The Penal Code, 1860 (hereinafter IPC), which was drafted by T.B. Macaulay and his
colleague law commissioners1 , is, by virtue of article 372 of the Constitution of India,
still operative in India. It, like any other criminal law, reflecting, through the eyes of
T.B. Macaulay and his colleagues, the then prevailing sexual mores in India, inter alia,
criminalizes ‘rape’- a coercive non-consensual (as well as consensual in a set of
specified circumstances) sexual intercourse with a woman.
Page: 26
Contemporary feminist critiques of law in India, however, perceive ‘rape’ as an

extension of the patriarchal control over female. It, they argue, amply reflects the
century and a half old deeply rooted conservative ‘pro-male’ & gender biased
‘Victorian’ notions of ‘sexual mores’. It, they assert, is premised on derogatory &
discriminatory assumptions against women.2
During the recent years, the era dominated by the intensive feminist movement
and its lobbying for appropriate legislative reforms in the ‘male-oriented’ and ‘gender-
biased’ criminal law system in India, the law relating to rape has received a serious
attention of the Law Commissions of India and the Parliament of India.
The present paper in the backdrop of the feminist ‘gender’ critique of the rape law
endeavours to evaluate the post-1860 reforms in the substantive criminal law (IPC)
relating to rape. Such an effort carries significance in the light of the latest (March
2000) report of the Fifteenth Law Commission of India3 , wherein the Law Commission,
on the direction of the Supreme Court of India 4 , after a careful review of the rape law
in vogue and deliberations with Sakshi, a voluntary organisation, and the National
Commission for Women (NCW), inter alia, recommended that the law relating to rape
be made gender neutral, wider and more comprehensive to bring it in tune with the
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current thinking.
II ‘Rape’: perception of Macaulay's commission
In order to appreciate the changing facets of rape law in India and its genesis in its
proper perspective, it becomes imperative to recall criminal and penal policy
perspectives of T.B. Macaulay that undeniably influenced the substantive rape law
vogue in India.
Clauses 359 and 360 of the Macaulay's Draft Penal Code, that ultimately culminated
in sections 375 and 376, IPC, as it emerged in 1860, dealt respectively with the
offence of rape and the punishment thereof. Clause 359 read:
Page: 27
A man is said to commit rape who, except in the cases hereinafter excepted, has
sexual intercourse with a woman under circumstances falling under any of the five
following descriptions:
First - Against her will.
Secondly - Without her consent while she is insensible.
Thirdly - With her consent, when her consent has been obtained by putting
her in fear of death, or of hurt.
Fourthly - With her consent, when the man knows that her consent is given
because she believes that he is a different man to whom she is, or believes
herself, to be married.
Fifthly - With or without her consent, when she is under nine years of age.
Explanation -Penetration is sufficient to constitute the sexual intercourse
necessary to the offence of rape.
Exception - Sexual intercourse by a man with his wife is in no case rape5 .
Clause 360 of the Macaulay's Code, exhibiting its punitive reaction to rape,
stipulated:
Whoever commits rape shall be punished with imprisonment of either description
for a term which shall not be more than fourteen years and not be less than two
years.
The final version of sections 375 & 376, which emerged, after deliberations in the
Select Committee, in the 1860's version of the IPC, differed a little from clauses 359
and 360 respectively. The only important change adopted in section 375 was of the
exception that read: ‘Sexual intercourse by a man with his wife, the wife not being
under ten years of age, is not rape’6 . Section 376 provided for the transportation for
life or an imprisonment for a term up to ten years with or without fine for committing
rape.
A glance at clauses 359 & 360 reveals that Macaulay and his team presumably
assumed that a woman, through marriage, forgoes forever her right to refuse sexual
intercourse with her husband and the husband, thereby, acquires an unconditional &
unqualified licence to force sex
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upon his wife7 . They treated it a premium on marriage. The first law commissioners
plausibly, therefore, did not deem it fit to bring a nonconsensual sexual intercourse by
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a man with his own wife within the purview of rape and thought it fit to make ‘marital
rape’ an exception to rape.
III ‘Rape’, ‘gender’ and the fifth and the ninth Law Commissions of India - a
panoramic view
In the post-independence period the rape law has received a serious attention of
the fifth, the ninth, the fourteenth, and the fifteenth Law Commissions of India.
In 1971, the fifth Law Commission in its 42nd report, inter alia, thoroughly scanned
the Macaulian perception of rape. It, in ultimate analysis, recommended that section
375 be split into three categories, namely, rape proper (rape on a woman other than
wife); rape on a child wife (wife below 12) & a separated wife; and statutory rape
(consensual sexual intercourse with a girl below the stipulated age).
The Law Commission, commenting on the (marital) exception to section 375 and
recalling the varied punishment (i.e. imprisonment for life) provided for statutory rape
by the husband on his wife (when the wife is under twelve) and that provided for
marital rape by the husband on his wife (i.e. imprisonment for a term upto 2 years
when the wife is between 12 and 15 years of age), and ‘very rare’ prosecutions for
marital rape, observed that sexual intercourse by a man with his own wife against her
will or without her consent be not called ‘rape even in a technical sense’. And it,
therefore, be taken out of the ambit of section 375 and be punished under a separate
section. Further, realising the fact that under the Exception a husband cannot be held
guilty for raping his wife, if she is above 15 years of age, and inapplicability of the
Exception to a nonconsensual sexual intercourse between a husband and his wife
living separately under a decree of judicial separation or by mutual agreement, the
Law Commission recommended that sexual intercourse by a husband with his
separated wife against her will or without her consent be made punishable as rape. It
accordingly suggested the deletion of the Exception from, the addition of Explanation
II to, section 375 and the addition of section 376A to the IPC to penalise sexual
intercourse by a man with his
Page: 29
‘child wife’ and ‘judicially separated wife’ respectively by rigorous imprisonment for a
term up to 7 years, if the wife was under 12 years of age (in lieu of the then existing
imprisonment for a term up to 2 years, or fine, or both, for marital rape) and an
imprisonment for a term up to 2 years. The recommended Explanation II of section
375 reads as under:
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.
And the recommended section 376A says:
376A. Sexual intercourse with child wife- Whoever has sexual intercourse with
his wife, the wife being under fifteen years of age, shall be punished-
(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.
Thus, the fifth Law Commission, through these recommendations, though minimal,
showed its least sensitivity to, and concern for, the underlying assumptions of the
familial ideology of the ‘all time irrevocable consent’ of a wife for sexual act.
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Nevertheless, it, in a way, attempted to do away with (or at least to minimise) marital
rape by providing a deterrent punishment for an ‘errant’ husband. It also provided for
a lesser punishment i.e. an imprisonment for a term up to two years, if the ‘victim
wife’ happens to be above twelve but below fifteen years of age.
The Law Commission, in its proposed revised section 376, probably influenced by
the theory of deterrence, suggested that the words ‘imprisonment for life or
imprisonment of either description for a term which may extend to ten years'
appearing in section 376 be substituted by ‘rigorous imprisonment for a term which
may extend to fourteen years, and shall also be liable to fine’.
Unfortunately, none of these recommendations of the fifth Law Commission has
received any positive response, for reasons known best to them, either from the
central government or the Parliament.
However, in the eighties, the rape law, due to the increasing incidence of rape and
frequent liberal & pro-accused judicial interpretations of provisions of sections 375 and
376 of the Penal Code leading to minimal convictions and/or convictions with lighter
punishment, invited severe
Page: 30
criticism. Pro-women activists and organisations also started intensive lobbying for
drastic changes in the substantive rape law.
The Government of India, on March 27, 1980, approached the ninth Law
Commission with a request to suggest, on top most priority basis, substantive as well
as procedural reforms in the rape law. In less than a month, on April 25, 1980, the
Law Commission submitted its comprehensive 84th report on ‘rape and allied offences’.
Interestingly, the ninth Law Commission did not lend its support to the ‘re-
structuring’ of section 375, IPC, by splitting it into three categories of rape, mooted by
the fifth Law Commission in its 42nd report. The ninth Law Commission, without giving
any reasons for discarding such a categorisation of rape, simply observed: 8
Suffice to say that the Commission now feels that such a restructuring would be
out of tune with the current thinking on the question of trial of offenders for rape
and, therefore, the structure of section 375 should not be altered…. The
Commission feels that re-structuring will produce uncertainty and distortion in
section 375, which, in its opinion, retain its present logical and coherent structure.
It, accordingly, omitted sections 376A (dealing with sexual intercourse with child
wife) and 376B (dealing with illicit intercourse with a girl between twelve and sixteen),
recommended by the fifth Law Commission, from its proposed revised section 375.
And it proposed that marital rape be retained in general section 375, as an Exception
to it. However, recalling the prevailing minimum statutory age of marriage of 18 years
for girls, it recommended that [Sixthly of, and Exception to,] section 375 be amended
to make sexual intercourse with a ‘girl’ as well as ‘wife’ below 18 years a ‘rape’.
However, echoing and endorsing the fifth Law Commission's recommendation of the
inclusion of three other sexual offences premised on the idea of ‘custodial rape’, the
ninth Law Commission retained in its recommended revised section 375, sections
376C, D & E and Explanation II, denying to a woman living separately from her
husband under a decree of judicial separation or by mutual agreement the status of
‘wife’ for the purposes of ‘rape’.
The ninth Law Commission, however, did not support the proposal of the fifth Law
Commission recommending ‘rigorous imprisonment for a term up to 14 years' in place
of ‘imprisonment for life or imprisonment of either description for ten years’. Curiously
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enough, it has not made any reference to section 376 (except sections 376C, D & E)
recommended in
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the 42nd report. It was of the opinion that section 376 be left untouched. However,
commenting on minimum punishment for rape, it opined that ‘certain minimum
punishment’ is ‘not in consonance with modern penology’ and discretion of a court
under section 376, IPC, permitting it to award life imprisonment or imprisonment up
to ten years, ‘should not be fettered by prescribing a certain minimum sentence’9 .
The ninth Law Commission, thus, neither sustained the insensitivity of the fifth Law
Commission to marital rape nor did make any significant inroads in to the parochial
and familial ideology of the law relating to rape. It, on the contrary, on vague grounds,
showed its reluctance to agree with the legislative reforms suggested by the fifth Law
Commission to detach marital rape from rape per se and to deter the errant husband
who is callous about, or insensitive to, the ‘will’ or ‘consent’ of his ‘child wife’ for
sexual intercourse.
IV Legislative response to the proposals for reform of the fifth and the ninth
Law Commissions of India
The central government, after considering the recommendations of the ninth Law
Commission, within less than four months after submission of the 84th report to it,
introduced on August 12, 1980 in the Lok Sabha the Criminal Law (Amendment) Bill
198010 . The 1980 Bill intended, inter alia, to amend the law relating to rape to make it
difficult for the offenders to escape conviction and to impose severe penalties on the
perpetrators of rape. In consonance with these objects, as stated in its Statement of
Objects and Reasons, it desired, among other things, to: plug certain loopholes and
remove inadequacies in the definition of rape; ensure that ‘consent’ should not be
vitiated unless it is real and given out of free choice; prescribe minimum punishment
for rape, and shift burden of proof in certain circumstances on the accused.
The 1980 Bill, giving effect to the recommendations about distinguishing ‘judicially
separated wife’ from ‘wife’, added Explanation 2 (originally recommended by the fifth
Law Commission and echoed by the ninth Law Commission) to section 375. However,
discarding the suggestion of the fifth Law Commission that marital rape be detached
from ‘rape’ by taking away the Exception from section 375 and of the ninth Law
Commission that the age of ‘wife’ be raised to ‘eighteen’ from ‘fifteen’ in the
Exception, the Bill retained the thitherto Exception. The relevant part of section 375
figured in the Bill, thus, read as under:
Explanation 2: A woman living separately from her husband under a decree of
judicial separation or by mutual agreement
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shall be deemed not to be his wife for the purpose of this section.
Exception: Sexual offence by a man with his own wife, the wife not being
under fifteen years of age, is not rape.
The Bill also provided for an imprisonment for a term not less than 7 years for rape,
other than its aggravated forms of custodial rape mentioned in clause (2) of section
376. It may be extended to 10 years or for life. Punishment for custodial rape, on the
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other hand, ranges from rigorous imprisonment for a term not less than 10 years to
imprisonment for life.
However, on December 23, 1980 the Bill, which sought to make far-reaching and
important changes in the law relating to rape, was sent to the Joint Committee of
Parliament, consisting of 23 members (7 of these were women) from the Lok Sabha
and 10 from the Rajya Sabha for its scrutiny. The Joint Committee, after changing
some of the proposed sections and adding a few ones, presented its Bill11 to the Lok
Sabha on November 2, 1982.
It is very pertinent to note that the Criminal (Amendment) Bill prepared by the
Joint Committee deleted Explanation 2 from its proposed section 375 and slightly
modified (italicised) its Exception to make it appear as:
Exception: Sexual intercourse by a man with his own wife, the wife not being
under fifteen years of age, is not rape.
The Joint Committee, however, with a view to providing punishment for rape on
‘wife’ (and on a ‘wife living separately’) redrafted section 376(1) and added section
376A. The italicised part of section 376(1), produced below, provides punishment for
marital rape:
376. Punishment for rape- (1) Whoever, except in the cases provided for by sub-
section (2), commits rape shall be punished with imprisonment of either description
for a term which shall not be less than seven years but which may be for life or for a
term which may extend to ten years and shall also be liable to fine unless the
woman raped is his own wife and is not under twelve years of age, in which case,
he shall be punished with imprisonment of either description for a term which may
extend to two years or with fine or with both.
And section 376A, dealing with punishment for rape on a wife living separately,
runs as under:
376A. Whoever has sexual intercourse with his own wife, who is living separately
from him under a decree of separation or under any custom or usage without her
consent shall be punished with
Page: 33
imprisonment of either description for a term which may extend to two years and shall
also be liable to fine.
A careful reading, from the gender perspective, of the substantive rape law outlined
in the Bill drafted by the Joint Committee and its comparison with that prepared by
the Government of India; and the reforms suggested in the 42nd and 84th reports of
the fifth and the ninth Law Commissions, reveals the following two notable facets of
the substantive law relating to rape:
1. The Joint Committee reduced the age of matrimonial rape. The Exception to
section 375 as it stood at that time, said that sexual intercourse by a man with
his own wife, the wife not being under fifteen years of age, is not rape. Then
Joint Committee reduced this age to twelve years. Revising section 376(1), it
suggested that sexual intercourse by a man with his own wife, not being under
twelve years of age, be punished with an imprisonment for a term not exceeding
two years. The change, in ultimate analysis, reduced the punishment of a man
for raping his wife aged between twelve and fifteen years of age.
2. The Joint Committee deleted Explanation II, dealing with sexual intercourse with
a judicially separated wife without her consent, originally recommended in the
42nd report and endorsed in the 84th report, from section 375, and inserted a
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fresh section 376A in its Bill to give effect to the Explanation. However, it,
contrary to the recommendations made in the 84th report, provided a lower
punishment (an imprisonment for a term up to 2 years) for rape on a judicially
separated wife. The Joint Committee gave a curious logic for such a lower
punishment. Rape of a judicially separated wife, according to the Committee,
may lead to a reconciliation of the spouse and therefore, it deserves a lighter
punishment12 .
These changes recommended by the Joint Committee do not only exhibit a pro-
male and gender-biased approach to rape on a ‘wife’ and ‘separated wife’ but also
suggest a mild punitive reaction to marital and separated spousal rape. The Joint
Committee, which represented both the Houses of Parliament, by reducing the age of
marital rape and providing lower punishment for rape on a judicially separated wife,
has not only confirmed that the rape law is gender discriminatory against woman but
also reasserted that a husband cannot be accused of raping his wife (of the stipulated
age).
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During debate on the Bill a few members have doubted the propriety of marital rape
and therefore suggested that sexual relationship between husband and wife under no
circumstances be treated as an offence13 . None other than Ram Jethmalani, a leading
criminal law lawyer in India and the former Union Law Minister, participating in the
debate, argued that ‘intercourse between man and woman should be outside the rape
provision altogether’. ‘You must completely eliminate’, he asserted, ‘from the provision
any situation in which a man can be held guilty of rape against his own wife’. The
prevention of marriages taking place at an early age, according to him, is a proper
solution14 .
However, the Criminal Law (Amendment) Act of 198315 , which came into effect in
December 1983, did not incorporate the suggestions pertaining to rape on ‘wife’ and
‘separated wife’. It retained the marital rape (and the wife's age as fifteenth in
Exception to section 375); deleted the Explanation 2 from section 375; retained
section 376(1) as well as section 376A suggested by the Joint Committee.
A combined effect of this legislative move can be realised if one recalls that section
375, as it stood in 1980, made no distinction between divorced and judicially
separated wife for punishing rape and an Explanation II to section 375 recommended
by the fifth and the ninth Law Commissions excluding a judicially separated wife from
wife and thereby making the husband guilty for rape exactly as though the woman
was not his wife. And a conviction under section 376A warrants relatively lower
punishment (an imprisonment for a term up to 2 years) compared to that provided for
other forms of rape (mandatory imprisonment for a term not less than 7 years in non-
custodial rape & an imprisonment for a term up to 10 years for custodial rapes).
However, relatively low sentence accorded to judicially separated man convicted of
raping his wife can only be explained on the man's status as a ‘husband’ and the Penal
Code, therefore, reduces its harshness
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when it comes to rape by ‘husband’ on his ‘wife’. Such a lenient punishment, in the
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backdrop of the debate in the Parliament, also exhibits the strong influence of
patriarchal ideology on the law makers of modern India.
Recently in 2000, Sakshi, a voluntary organisation interested in the issues

concerning women, in its deliberations with fifteenth Law Commission of India, which
was directed by the Supreme Court of India to review rape laws, pleaded that forced
sexual intercourse by a husband with his ‘wife’ and ‘separated wife’ be treated as an
offence just as any physical violence by a husband against the wife is treated as an
offence and therefore, the Exception to sections 375 and 376A be deleted from IPC.
Pursuing the same logic, Sakshi submitted that the words ‘unless the person raped is
his own wife and is not under 15 years of age, in which case, he shall be punished
with imprisonment of either description for a term which may extend to two years or
with fine or with both’ be deleted from section 376(1), IPC. ‘Where a husband causes
some physical injury to his wife, he is punishable under the appropriate offence and
the fact that he is the husband of the victim is not an extenuating circumstance
recognised by law, if so,’ Sakshi argued, ‘there is no reason why concession should be
made in the matter of offence of rape/sexual assault where the wife happens to be
above 15/16 years’16 . It also employed similar logic to impress the Law Commission to
recommend the deletion of section 376A from IPC. Doubting the propriety of section
376A, which provides a lesser punishment to a husband who sexually assaults his wife
living separately under a decree of separation or under any custom or usage, Sakshi
argued that section 376A is arbitrary and discriminatory for the simple reason that it,
in ultimate analysis, discriminates between a husband, who sexually assaults his wife
living separately, and a man who sexually assaults a woman. The deletion of section
376A, according to it, would make the husband, in such a case, punishable under
section 376(1), which carries higher punishment than section 376A17 .
However, the Law Commission simply refused to recommend the’ decriminalisation
of marital rape on the ground that ‘it may amount to excessive interference with the
marital relationship’18 . Similarly, appreciating the force of the argument of Sakshi but
refusing to ‘ignore the fact that even in such a case (wife living separately under a
decree of separation or under any custom or usage) the bond of marriage remains
unsevered’, it recommended the retention in IPC of section 376A. However, it
recommended an enhanced punishment (an imprisonment for a term
Page: 36
between 2 to 7 years) for sexual assault by a husband on his wife living separately19 .
A comparative glance at the above outlined ‘gender perspectives’ of the Law

Commissions of India (particularly of the fifth Law Commission) and of the legislature
(reflected in the 1983 Criminal Law Amendment Act) reveals that the former was more
liberal in its approach in reducing the influence of the underlying colonial, patriarchal
and familial notions of ‘sexual mores’ on the substantive rape law. The fifth Law
Commission recommended that the marital exception be detached from rape and it be
punished as a separate offence (plausibly to discourage the child marriages through
penal law). It also suggested that non-consensual sexual intercourse between a
husband and his separated wife be brought within the purview of ‘rape’. However, the
ninth and fifteenth Law Commissions as well as the Joint Committee of Parliament did
not support the first proposal. Nevertheless, the Joint Committee, by incorporating in
its Bill section 376A, dealing with non-consensual sexual intercourse between a
husband and his separated wife, proposed by the fifth Law Commission, gave effect to
the latter one. The fifteenth Law Commission recommended an additional severe
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punishment for rape by a husband on his separated wife.
V ‘Rape’, ‘sexual intercourse’ and ‘penetration’- a plea for fresh look at, and
for gender-neutral rape law
Explanation of section 375, since 1860, makes it clear that ‘penetration’ is not only
sufficient but also necessary to constitute the ‘sexual intercourse’ required for the
offence of ‘rape’. The word ‘penetration’, however, as interpreted by the judiciary,
connotes only penile-vaginal, even slight, penetration.
Recently, in 1996 the Delhi High Court in Sudesh Jhaku v. K.C.J.20 was called upon
to interpret, in a set of peculiar factual context21 ,
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‘penetration’ and ‘sexual intercourse’, the key phrases in the offence of rape. The high
court was urged to deliberate upon: ‘Is ‘rape’ as defined in section 375, IPC, confined
only to penile penetration of vagina? What about penetration of a bodily orifice
(vagina, anus, or mouth) by a penis or other part of the body, or by an object? Would
it fall within the meaning of words ‘sexual intercourse’ and ‘penetration’ as used in
section 375, IPC?
Relying heavily upon the phraseology of sections 375 and 377 of the Penal Code
along with ‘Explanations’ thereof and that of definitions of ‘rape’ from the Criminal
Laws of Western Australia, Washington State, and Canada, Mr. Arun Jaitley,
representing the petitioner, vehemently argued that ‘penetration’ by a man of any part
of his body into any part of body of a woman other than vagina with her consent
amounts to ‘unnatural offence’ covered under section 377, IPC, and such a
‘penetration’ without her consent comes within the ambit of section 376, IPC.
However, the high court, taking the position that the definition of rape incorporated
in IPC is solely premised on the Common Law of England, held that the words ‘sexual
intercourse’ and ‘penetration’, which have all along been taken in England (and in
India too) to mean only the penile penetration of the vagina, cannot be interpreted to
bring within their fold the vaginal penetration by fingers or any other object. Justice
Jaspal Singh, speaking for the court, desisted from exhibiting ‘a little innovative
boldness’ to give a ‘realistic’ interpretation to the substantive rape law in India. His
Lordship, taking the risk of being labelled as ‘an old guard hunkering down in the
bunkers of tradition’ and stressing the need for appropriate legislative intervention to
bring the desired changes in the substantive rape law in India, refused to bring the
rape law in tune with that of other countries.
In 1997 Sakshi, through a PIL writ petition22 , approached the Supreme Court of
India with a plea that existing sections 375 and 376 of the Penal Code and judicial
interpretations thereof are not in tune with the current state of affairs. It urged the
court, inter alia, to direct, through an appropriate writ, that ‘sexual intercourse’ as
contained in section 375 include all forms of penetration such as penile/vaginal
penetration, penile/
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oral penetration, penile/anal penetration, finger/vaginal and finger/anal penetration

and object/vaginal penetration. It also urged that the ambit of ‘penetration’ as
contained in the Explanation of section 375 be broadened to include not only vaginal
penetration but also anal and oral penetration as well as penetration by any part of the
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body or by any object.
The apex court, by its order dated January 13, 1998, however, directed the fifteenth
Law Commission of India to communicate its response to the issues raised by Sakshi.
The Law Commission, however, on July 28, 1998 filed an affidavit setting out in
extenso the relevant portions of the 156th report on the Penal Code, 1860, prepared by
the fourteenth Law Commission. Convinced by the fact that the 156th report has not
addressed itself to the precise issues raised by Sakshi and its recommendations that
penile/oral penetration and penile/anal penetration be covered by section 377 (dealing
with ‘unnatural offence’), and that the present section 354 (dealing with outraging
modesty of a woman), is adequate enough to bring in its ambit the finger penetration
and object penetration into vagina or anus, are not in tune with the issues raised by
Sakshi, the Supreme Court again directed on August 9, 1999 the fifteenth Law
Commission ‘to examine the issues submitted by the petitioners and examine the
feasibility of making recommendations for amendment of the Penal Code, 1860 or deal
with the same in any other manner so as to plug the loopholes’23 .
After a careful review of the rape law in vogue and an intensive deliberations with
Sakshi, the National Commission for Women (NCW), and other organisations, the Law
Commission, in its 172nd report submitted to the Government of India on March 25,
2000, recommended, inter alia, that the law relating to ‘rape’ be made gender neutral,
wider and more comprehensive to bring it in tune with the current thinking.
The Law Commission, accordingly, recommended that the offence of ‘rape’ be
substituted by the offence of ‘sexual assault’, a gender neutral phrase, and that ‘all
kinds of penetration’ in the vagina, anus or urethra of another [whether by a part of
human body or by an object] as well as oral sex be brought within the purview of the
proposed ‘sexual assault’. Under the guise of drawing ‘inspiration’ from section 319(1)
of the Criminal Law of Western Australia24 , the Law Commission literally imported it
[section 319(1)] while defining ‘sexual intercourse’ in ‘rape’ and substituting the
unnumbered first paragraph of section 375, IPC. It also recommended minor changes
in the clauses First to Sixthly of section 375 to make them gender neutral. The
existing age of the ‘wife’, mentioned in Exception to section 375, and of the person
assaulted sexually referred to in the clause Sixthly, according to the Law Commission,
be raised to sixteen from fifteen. The proposed re-cast section 375, thus, reads:
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375. Sexual Assault: Sexual assault means-

(a) penetrating the vagina (which term shall include the labia majora ), the anus
or urethra of any person with-
i) any part of the body of another person or
ii) an object manipulated by another person except where such penetration is
carried out for proper hygienic or medical purposes;
(b) manipulating any part of the body of another person so as to cause
penetration of the vagina (which term shall include the labia majora ), the
anus or the urethra of the offender by any part of the other person's body;
(c) introducing any part of the penis of a person into the mouth of another
person;
(d) engaging in cunnilingus or fellatio; or
(e) continuing sexual assault as defined in clauses (a) to (d) above in
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circumstances falling under any of the six following descriptions:
First- Against the other person's will.
Secondly- Without the other person's consent.
Thirdly- With the other person's consent when such consent has been
obtained by putting such other person or any person in whom such other
person is interested, in fear of death or hurt.
Fourthly- Where the other person is a female, with her consent, when the
man knows that he is not the husband of such other person and that her
consent is given because she believes that the offender is another man to
whom she is or believes herself to be lawfully married.
Fifthly- With the consent of the other person, when, at the time of giving
such consent, by reason of unsoundness of mind or intoxication or the
administration by the offender personally or through another of any stupefying
or unwholesome substance, the other person is unable to understand the
nature and consequences of that to which such other person gives consent.
Sixthly- With or without the other person's consent, when such other
person is under sixteen years of age.
Page: 40
Explanation: Penetration to any extent is penetration for the purposes of this

section.
Exception: Sexual intercourse by a man with his own wife, the wife not being
under sixteen years of age, is not sexual assault.
The Law Commission has not recommended any major changes, except two, in
section 376, IPC, dealing with punishment for sexual assault. First, by treating the
existing proviso as the second, it proposed an addition of a proviso to section 376(1)
to provide for rigorous imprisonment for a term not less than 10 years (that may be
extended to life imprisonment) for sexual assault by a father, grandfather, brother or
any other person being in a position of trust or authority towards his victim 25 .
Secondly, it also recommended enhancement of the age of ‘wife’ referred to in the
proposed sub-section (1) and of the person assaulted in clause (f) of sub-section (2)
from the existing ‘fifteen’ to ‘sixteen’.
The fifteenth Law Commission, thus, while perceiving the terms ‘penetration’ and
‘sexual intercourse’, key terms in the offence of rape, in a very wide sense, not only
brought ‘all kinds of penetration’ in the vagina, anus or urethra of another [whether by
a part of human body or by an object] as well as oral sex, within the purview of these
terms but also recommended a comprehensive gender neutral law relating to rape
(‘sexual assault’). Charged with its deep concern for sexual abuse of the child, like in
the Sudesh Jhaku case, it also suggested that an incestuous ‘sexual assault’ on a
victim by her ‘near relative’ [such as father, grandfather or brother] be brought within
the ambit of penal law and such an incestuous man be met with a severe (minimum)
mandatory punishment.
VI Proposed progressive substantive rape law and the marital rape exemption
- a significant oversight
The fifteenth Law Commission, surprisingly, though exhibiting its unreserved zeal to
bring the Indian law in tune with ‘current’ thinking and its unparalleled progressive
and liberal approach to the substantive rape law, apprehending that the deletion of
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-
marital exception from the Penal Code would amount to (excessive!) interference with
marital relationship, did not only favour the criminalisation of marital rape in India but
also, for the reasons best known to it, overlooked, advertently or inadvertently,
Page: 41
the latest judicial opinions of far reaching consequences in the substantive law relating
to marital rape in the United Kingdom.
It must be recalled here that the idea of marital rape exemption and the
consequential immunity from liability of a husband for ‘raping’ his wife is premised on
the assumption that a wife does by the fact of marriage give an implied consent in
advance for the husband to have sexual intercourse with her. The assumption is
originated from the following statement of Sir Matthew Hale. The statement, which is
generally regarded as an accurate statement of the common law of England, runs as
under:26
But the husband cannot be guilty of rape committed by himself upon his lawful
wife, for by their mutual matrimonial consent and contract the wife hath given up
herself in this kind unto her husband, which she cannot retract.
However, it is equally pertinent to recall that recently in 1991 the Court of Appeal27
and the House of Lords28 , doubting propriety in the 20th century of the marital rape
exemption premised on the Justice Hale's proposition that a wife cannot retract the
consent to intercourse which she gave upon marriage, have ruled that marital rape is
an offence. The common law rule of marital rape exemption, according to their
Lordships, was based on an absurd, anachronistic and offensive fiction. The English
law, thus, through judicial interpretation, has completely abolished the doctrine. of
husband's immunity for marital rape.
Lord Lane, CJ of the Court of Appeal, dismissing the appeal against conviction by
Owen, J. of the Crown Court at Leicester of a husband, inter alia, involving liability of a
husband for sexual intercourse with his wife without her consent, observed:29
…the idea that a wife by marriage consents in advance to her husband having
sexual intercourse with her whatever her state of health or however proper her
objections (if that is what Hale, CJ meant) is no longer acceptable. It can never
have been other than a fiction, and fiction is a poor basis for the criminal law…. It
Page: 42
seems to us that…the common law rule no longer even remotely represents what is
the true position of a wife in present day society….
In the same vein his Lordship asserted:30

… we do not consider that we are inhibited (by the 1976 Act) from declaring that
the husband's immunity as expounded by Hale, CJ no longer exists. We take the
view that the time has now arrived when the law should declare that a rapist
remains a rapist subject to the criminal law, irrespective of his relationship with his
victim.
Lord Keith of Kinkel, speaking for himself; Lord Brandon of Oakbrook; Lord Griffiths;
Lord Ackner; and Lord Lowry, of the House of Lords, delving into ‘is a husband
criminally liable for raping his wife?’, the point of law of general public importance as
certified by the Court of Appeal in R. v. R., held that the rule that a husband cannot be
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-
criminally held liable for raping his wife if he has sexual intercourse with her without
her consent no longer forms part of the law of England. His Lordship, stressing that in
modern times a husband and wife are to be regarded as equal partners in marriage,
justified his stand by observing:31
Hall's proposition reflected the state of affairs in theses respects at the time it
was enunciated. Since then the status of women, and particularly of married
women, has changed…. One of the most important changes is that marriage is in
modern times regarded as a partnership of equals, and no longer one in which the
wife must be the subservient chattel of the husband. Hale's proposition involves
that by marriage a wife gives her irrevocable consent to sexual intercourse with her
husband under all circumstances and irrespective of the state of her health or how
she happens to be feeling at the time. In modern times any reasonable person
must regard that conception as quite unacceptable.
Lord Keith of Kinkel, in consonance with the above reasoning, not only answered the
certified question in the affirmative by quoting Lord Lane, CJ with approval but also
declared that ‘on grounds of principle there is now no justification for the marital
exception in rape’32 and therefore ‘in modern times the supposed marital exception in
rape forms no part of the law of England’33 . It is further interesting to note that the
Page: 43
Law Commission (UK) has recommended that the decision in R. v. R. be confirmed by

legislation34 .
VII Concluding remarks

Hitherto, the Law Commission of India, as outlined above, has devoted four of its
reports, namely, the 42nd , the 84th, 156th and 172nd reports, to the Penal Code, 1860.
The 42nd and the 156th reports concentrate on the overhauling of the IPC, while the
84th and 172nd reports offer a set of comprehensive suggestions for reforms in the
substantive law relating to rape. The central legislature, however, has favourably
responded to the 84th report (and to the reiterated recommendations of the Law
Commission in its 42nd report) by amending, through the Criminal Law (Amendment)
Act 1983, substantive law relating to rape. However, the 156th and 172nd reports are
still awaiting attention of the legislature.
The 1983 Amendment Act, as outlined above, has made a set of positive changes of
far reaching consequences in the substantive law relating to rape. However, it retained
the marital rape, a colonial hangover of familial and sex ethos, as an exception to rape.
Nevertheless, it, through penalising, though not as rape, sexual intercourse by a
husband with his wife living separately, has made a significant inroad in the criminal
law relating to rape. One may, therefore, feel that section 376A makes inroads, though
insignificant, in the centuries old notion that a married woman does not have the right
to deny sexual access to her husband. However, it can be argued that section 376A
simply recognises that the act of judicial separation revokes the wife's assumed
consent to sexual intercourse with her husband. And therefore, it cannot be taken as a
challenge to the assumption that the act of marriage gives rise to an unqualified and
unconditional consent on the part of the wife for sexual intercourse with her husband.
Nevertheless, it can be seen as a beginning of a challenge to the marital exception of
rape.
Surprisingly, the fifteenth Law Commission, which has exhibited a very progressive
and liberal approach to the substantive law relating to rape, has not recommended any
further significant inroads in the law relating to marital rape. Hope, the Indian
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-
Parliament, recalling the progressive developments in the rape law in other
jurisdictions and realising that the Hale's proposition is odd with the ‘current’ thinking
on rape law, would give a serious thought to the marital exemption and thereby would
make the rape law in India equally progressive and modern.
Nevertheless, proposal for reforms of the fifteenth Law Commission seems to be a
positive indicator in the direction of, and sets a right tone for, progressive gender-
neutral rape law in India. However, such a gender
Page: 44
neutral law, in the present submission, would not be of much practical significance in
a country like India where inhibitory conservative sexual ‘mores’ and ‘taboos’ have a
great bearing on her ‘social setting’. Indians, unlike Europeans and Americans, lack
the ‘courage’ to share with, and an ‘open-mind’ approach to, ‘sexual experience’. In
such a socio-moral ethos, sexual assaults by a man on another man are not only
scanty but they do hardly surface. Similarly, ‘sexual assault’ by a woman on a man,
probably out of shame and disgrace associated therewith, are hardly revealed to
others. Similar inhibitions and sexual morals and ethos of the ‘Indian’ womanhood
desist her from disclosing a ‘sexual assault’ on her by another woman. The proposed
section 375, replacing the present one, if enacted, will, therefore, be a mere symbolic
legislative exercise.
A symbolic law, embodying certain values and expressing the consensus of the
society to adhere to theses values, nevertheless, undeniably generates a process of
creating social consensus and consequential conditions that are conducive to mobilise
such a change. The proposed reforms in the substantive rape law, therefore, would
undeniably give a further momentum to the untiring efforts of women's organisations
to do away with the ‘pro-male’, ‘male-oriented’ and ‘gender biased’ sexual morals
reflected in the Indian law relating to rape. It, if favourably responded to by the
legislature, would not only undeniably make the substantive rape law free from the
century and a half old ‘gender bias’ assumptions and the familial colonial hangover but
would also take the rape law in a new progressive direction in the new millennium. The
legislature in the new millennium will have to opt for either the colonial and patriarchal
rape law or for a more progressive and gender neutral one, as outlined in the
preceding pages and as suggested by the fifteenth Law Commission of India.
———
* Professor of Law & Head, Postgraduate Department of Law, University of Pune, Pune, India.
1 Ft was the first Law Commission which took the initiative in drafting a Penal Code for India under the
presidentship of Lord Macaulay with whom MacLeod, Anderson and Millett were the commissioners. They drew
not only upon English and Indian laws and regulations but also upon Livingstone's Louisiana Code and the Code of
Napoleon. The draft code was submitted to the Governor General of India in Council in 1837. It underwent
further revision at the hands of Sir Barnes Peacock, Sir J.W. Colville and several others, and it was completed in
1850. It was presented to the Legislative Council in 1856 and was passed into law by Act XLV of 1860. It
received the assent of the Governor General on the 6-10-1860. It came into effect from 1-1-1862.
2 See generally, Committee on the Status of Women in India, Towards Equality: Report of the Committee on the
Status of Women in India (1975); Ratna Kapur & Brenda Cossman, Subversive Sites: Feminist Engagements with
Law in India (1996); S.P. Sathe, Towards Gender Justice (1996); Vasudha Dhagamwar, Law, Power and Justice:
The Protection of Personal Rights in the Indian Penal Code (1992). See also, Susan Brownmiller, Against Our Will:
Men, Women and Rape (1975); Allison Morris, Women, Crime and Criminal Justice (1987).
3 Law Commission of India, 172nd report on Review of Rape Laws (2000). However, it is also pertinent to recall
that the fifth Law Commission of India, in its 42nd report on the Penal Code, 1860 also recommended
amendments to Ss. 375 and 376 of the IPC. Some of these suggestions were restressed by the ninth Law
Commission in its 84th report on Rape and Allied Offences and by the 14th Law Commission in its 156th report on
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
the Penal Code, 1860.
4
Sakshi v. Union of India, (1999) 6 SCC 591.
5However, the Select Committee, without giving any reasons, perceived it a “rape”, if the wife was below 10
years.
6Current age of consent is 15. For amendments made to the age of consent between 1860 and 1978 see, Law
Commission of India, 84th report on Rape and Allied Offences 8.
7 See, Hale, The History of the Pleas of the Crown vol. 1 (1736) and East, A Treatise of the Pleas of the Crown
(1803). However, it was argued that then prevailing social approval for child marriages in India and the earlier
onset of puberty in tropical countries might have tempted, rather compelled, the first law commissioners to carve
out the marital exception to rape. See, Vasudha Dhagamwar, supra note 2 at 112-113. For details see infra note
12.
8 Law Commission of India, 84th report on Rape and Allied Offences para 2.21.
9 Ibid. at 2.27.
10
Bill No. 162 of 1980.
11 The Criminal Law (Amendment) Bill, 1980 (Bill No. 162-B of 1980).
12 Vasudha Dhagamwar, “Rape Bill Report - Ominous Aspect”, Mainstream (1983).
13
See, Lok Sabha Debates vol. 42 No. 6 cols. 369, 376, 430 (1-12-1983).
14 Ibid. at cols. 414 -15.
15 Act 43 of 1983. It, intending to overhaul the law relating to rape, widens the ambit of the rape and provides
for stiffer punishments to perpetrators of rape. It, curtailing the thitherto judicial discretion in quantifying criminal
liability of a rapist, also provides for mandatory minimum sentence of seven years imprisonment, which may be
extended to a term of ten years or for life. S. 376(1) now provides for a minimum sentence of 7 years'
imprisonment and a maximum of imprisonment for life. And cl. (2) of S. 376, IPC, makes gang rape, custodial rape
and rape on a pregnant woman an offence and provides for a rigorous imprisonment for a term not less than 10
years for these newly created categories of rape. A court may alternatively award life imprisonment. However,
both the clauses allow a court, for “adequate and special reasons”, to impose a sentence of imprisonment for a
term lesser than 7 years and rigorous imprisonment for a term lesser than 10 years, respectively.
16 Supra note 3 at paras 2.3(d) and 3.1.2.1.
17 Ibid. at para 3.3.
18 Ibid. at para 3.1.2.1.

19
Ibid. at paras 3.3 and 3.3.1.
20
1996 SCC OnLine Del 397 : 1998 Cri LJ 2428 : (1996) 62 DLT 563.
21 Facts of the case as narrated in the reported decision, in brief, were: A father of three daughters, an Under-
Secretary in the Ministry of Home Affairs, used to take his youngest daughter (of about six years) to his office
and from there to a hotel in the evenings. There he, along with his other colleagues, in company of the girl, used
to consume alcohol and watch “blue films”. During watching the films, the father would make his daughter to
consume alcohol, remove her clothes, and thrust his fingers in her vagina and anus. At home also he used to,
after stupefying his other two daughters and the wife and consuming alcohol with some “white tablets”, bring
the youngest daughter to the drawing room. Then he would make himself naked and the daughter too and make
the daughter to suck his penis.
The father was charged by the CBI under Ss. 376 (punishment for rape), 377 (unnatural offences), 354
(outraging modesty of a woman), & 366-A (seducing a minor girl for illicit intercourse) r/w 109 (abetting an
offence). However, the Additional Sessions Judge charged the father under Ss. 354, 377 and 506
(punishment for criminal intimidation) of the IPC and his colleagues under Ss. 354 and 377, IPC. The mother
of the child, on whose complaint the case was registered, however, was not satisfied with the charges
slapped on her husband. She urged that he, in addition to the abovementioned charges, be charged under
Ss. 376 and 366-A, IPC.
22 Sakshi v. Union of India, (1999) 6 SCC 591.
23
Sakshi v. Union of India, (1999) 6 SCC 591.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
24 For text see, Sudesh Jhaku v. K.C.J., 1996 SCC OnLine Del 397 : 1998 Cri LJ 2428, 2431 : (1996) 62 DLT 563.
25 It is also interesting to note that the Law Commission has also recommended a new s. (S. 376-E: Unlawful
Sexual Contacts) providing for an imprisonment for a term up to 7 years, with or without fine, if a person “in a
position of trust or authority towards a young person” touches, with sexual intent and without consent, any part
of the body of the “young person” with a part of his body or an object.
26
Hale, The History of the Pleas of the Crown vol. 1629 (1736). The proposition is also subsequently echoed
with equal assertion by East in the following words: “… a husband cannot by law be guilty of ravishing his wife,
on account of the matrimonial consent which she cannot retract”, See, East, A Treatise of the Pleas of the
Crown 446 (1803). It was also stated by Archbold that “A husband also cannot be guilty of rape upon his wife.”
See, Archold, A Summary of the Law Relative to Pleading and Evidence in Criminal Cases 259 (1822).
27 Reg. v. R., (1992) 1 AC 599 : (1991) 2 WLR 1065 : (1991) 2 All ER 257.
28 Reg. v. R., (1992) 1 AC 599 : (1991) 3 WLR 767 : (1991) 4 All ER 481.
29
R. v. R. [1991] 1 All ER 747.
30 Supra note 27 at 265-66.
31 Supra note 28 at 483-84.
32
Ibid. at 485.
33 Ibid. at 489.
34 Law Commission of India, II 6th report on Rape within Marriage (1992).
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/
notification is being circulated on the condition and understanding that the publisher would not be liable in any manner by reason of any mistake
or omission or for any action taken or omitted to be taken or advice rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/
rule/ regulation/ circular/ notification. All disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The
authenticity of this text must be verified from the original source.

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Page 1 Thursday, September 24, 2020

Contemporary feminist critiques of law in India, however, perceive ‘rape’ as an

Explanation II - A woman living separately from her husband under a decree of

Recently in 2000, Sakshi, a voluntary organisation interested in the issues

A comparative glance at the above outlined ‘gender perspectives’ of the Law

oral penetration, penile/anal penetration, finger/vaginal and finger/anal penetration

375. Sexual Assault: Sexual assault means-

Explanation: Penetration to any extent is penetration for the purposes of this

In the same vein his Lordship asserted:30

Law Commission (UK) has recommended that the decision in R. v. R. be confirmed by

VII Concluding remarks

18 Ibid. at para 3.1.2.1.

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