'RAPE' AND THE INDIAN PENAL CODE AT THE

CROSSROADS OF THE NEW MILLENNIUM: B E T W E E N

PATRIARCHIAST AND GENDER NEUTRALIST A P P R O A C H

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 Indian Penal Code, 1860 (hereinafter IPC), which was drafted by
T. B. Macaulay and his colleague law commissioners 1 , 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.

* Professor of Law & Head, Post-Graduate 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 rVTillett 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 6th October 1860. It came into
effect from 1st January 1862.

www.ili.ac.in © The Indian Law Institute

26 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 43 : 1

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 oi '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 India4, 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 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:
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 (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 Indian Penal Code also recommended amendments to sections 375
and 376 of the IPC. Some of these suggestions were re-stressed 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 Indian Penal Code.
4. Writ Petition (Cri) No. 33 of 1997, order dated August 9, 1999.

www.ili.ac.in © The Indian Law Institute

2001 ] 'RAPE' AND THE INDIAN PENAL CODE AT THE CROSSROADS 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 rape 5 .

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

5. However, the Select Committee, without giving any reasons, perceived it a

'rape', if the wife was below 10 years.
6. Current age of consent is 15. For amendments made to the age of consenl
between 1860 and 1978 see, Law Commission of India, 84th report on Rape ana
Allied Offences 8.

www.ili.ac.in © The Indian Law Institute

28 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 43 : 1

upon his wife7. They treated it a premium on marriage. The first law
commissioners plausibly, therefore, did not deem it fit to bring a non­
consensual sexual intercourse by a man with his own wife within the
purview of rape and thought it fit to make 'marital rape' an exception to
rape.

Ill '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 non­
consensual 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 3 76A to the IPC to penalise sexual intercourse by a man with his

7. See, Hale, History of the Pleas of the Crown vol. 1 (1736) and East, 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.

www.ili.ac.in © The Indian Law Institute

2001 ] 'RAPE' AND THE INDIAN PENAL CODE A T THE CROSSROADS 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. 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

www.ili.ac.in © The Indian Law Institute

30 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 43 : 1

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 re­
structuring 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 enough, it has not made any
reference to section 376 (except sections 376C, D & E) recommended in

8. Law Commission of India, 84th report on Rape and Allied Offences para 2.21.

www.ili.ac.in © The Indian Law Institute

2001 ] 'RAPE' AND THE INDIAN PENAL CODE A T THE CROSSROADS 31

the 42 nd 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 84 th report to it, introduced on August 12, 1980 in the Lok Sabha
the Criminal Law (Amendment) Bill 1980 10 . 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

9. Id. at 2.27.
10. Bill no. 162 of 1980.

www.ili.ac.in © The Indian Law Institute

32 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 43 : 1

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 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 Bill n 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

www.ili.ac.in © The Indian Law Institute

2001] 'RAPE'AND THE INDIAN PENAL CODE AT THE CROSSROADS 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 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).

11. The Criminal Law (Amendment) Bill, 1980 (Bill no. 162-B of 1980).
12. Vasudha Dhagamwar, "Rape Bill Report - Ominous Aspect" Mainstream
(1983).

www.ili.ac.in © The Indian Law Institute

34 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 43 : 1

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

13. See, Lok Sabha Debates vol. 42 no. 6 col. 369, 376, 430 (1.12.1983).
14. Id, at col. 414-15.
15. Act no. 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 clause (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.

www.ili.ac.in © The Indian Law Institute

2001] 'RAPE' AND THE INDIAN PENAL CODE AT THE CROSSROADS 35

when it comes to rape by 'husband' on his 'wife'. Such a lenient

punishment, in the backdrop of the debate in the Parliament, also exhibits
the strong influence of patriarchal ideology on the law makers of modern
Jndia.
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 3 76A 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 the1
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

16. Supra note 3 at paras 2.3(d) and 3.1.2.1.

I17.
T Id.
fJ at para
«♦ « « ™ 3.3
1 1

18. Id, at para 3.1.2.1

www.ili.ac.in © The Indian Law Institute

36 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 43 : 1

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 3 76A, 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 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.CJ.20
was called upon to interpret, in a set of peculiar factual context21,

19. Id. at paras 3.3 and 3.3.1.

20. Cri R No. 101 of 1996 decided on 23.5.1996. Reported in (1996) 62 DLT 563.
Also reported in 1998 Cri LJ 2428.
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.

www.ili.ac.in © The Indian Law Institute

2001 ] RAPE' AND THE INDIAN PENAL CODE AT THE CROSSROADS 37

'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 allforms of penetration such as penile/vaginal penetration, penile/

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 above mentioned charges, be charged under ss. 376 and 366-A, IPC.
22. Sakshi v. Union of India, Writ Petition (Cri) No. 33 of 1997.

www.ili.ac.in © The Indian Law Institute

38 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 43 : 1

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 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 Indian Penal Code, 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 Indian Penal Code 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:

23. Sakshi v. Union of India, (1999) 6 SCC 591.

24. For text see, Sudesh Jhaku v. K.CJ., 1998 Cri LJ 2428, 2431.

www.ili.ac.in © The Indian Law Institute

2001] 'RAPE' AND THE INDIAN PENAL CODE AT THE CROSSROADS 39

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 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.

www.ili.ac.in © The Indian Law Institute

40 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 43 : 1

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 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,

25. It is also interesting to note that the Law Commission has also recommended
a new s. (s. 376E: 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.

www.ili.ac.in © The Indian Law Institute

2001] 'RAPE' AND THE INDIAN PENAL CODE AT THE CROSSROADS 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 Appeal 27 and the House of Lords 28 , doubting propriety in the
20 th 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, C J 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

26. Hale, History of the Pleas of the Crown vol. 1 629 (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, Treatise of the Pleas of the Crown 446
(1803). It was also stated by Archold 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).
U.Rv.R [1991] 2 All E R 257.
2S.Rv.R [1991] 4 All E R 481.
29.Rv.R [1991] 1 All E R 747.

www.ili.ac.in © The Indian Law Institute

42 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 43 : 1

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.f held that the rule that a husband cannot be
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

30. Supra note 27 at 265-66.

31. Supra note 28 at 483-84.
32. Id. at 485.
■33. Id at 489.

www.ili.ac.in © The Indian Law Institute

2001] 'RAPE AND THE INDIAN PENAL CODE AT THE CROSSROADS 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 42 nd , the 84th, 156th and 172nd reports, to
the Indian Penal Code. 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 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

34. Law Commission of India, 116th report on Rape within Marriage (1992).

www.ili.ac.in © The Indian Law Institute

44 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 43 : 1

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.

www.ili.ac.in © The Indian Law Institute