CHAPTER – 1

INTRODUCTION

In order for children to mature into contributing members of society, appropriate care and
guidance are required for them during their formative years. As the most defenceless members of
society, children are especially susceptible to being victimised by a variety of abusive practises,
most notably sexual assault. The act of using children for sexual pleasure, which is the definition
of child sexual abuse, is a flagrant breach of human rights and a clear cut case of human rights
abuse. When children keep something that is troubling them to themselves rather than telling an
adult about it, they put themselves in danger on multiple fronts: psychologically, emotionally,
and even physically.

The Protection of Children from Sexual Offences Act, 2012 was the first law that the Indian
government passed to address the sexual abuse and exploitation of children. This law, which
provided severe punishments, was the first law to address these issues. However, the increasing
number of cases suggests that the Act is not being implemented properly and that law
enforcement officials have little interest in taking action against the perpetrators of this horrible
crime. This is evidenced by the recent cases of gang rape that occurred in Unnao and Kathua.
Because of this, the government has been compelled to make changes to the Act in order to
increase its level of effectiveness.

The current research investigates the problems that are related with child sexual abuse in India,
including the variables that contribute to the crime as well as the ramifications of the offence. It
provides a critical analysis of the existing legal framework, with a primary focus on the recently
enacted revisions to the POCSO Act. It does so by investigating the efficacy of these changes and
recommending other approaches that can be used to effectively deal with this heinous crime. The
abuse of children in sexual ways during the COVID-19 period in India is also included in this
paper.
The most formative years of a person's life are those spent in childhood. They are the nation's
architects of the next generation. As a result, the well-being of such individuals requires the
establishment of an environment that is both wholesome and secure in order to safeguard their
legal rights. Unfortunately, despite the fact that children are fragile, a dreadful environment
exists in which kids are easy targets for exploitation and abuse by criminals. This condition is
terrible. When we speak of "child abuse," we are referring to instances in which children have
been neglected or handled inappropriately.

The establishment of societal ideals and expectations can be attributed to the passing of laws.
The laws of a specific era are reflective of the values held during that time. In order to most
effectively rectify a current circumstance, dynamic laws that evolve together with the passage of
time are the most useful tool. A situation that, in the absence of committed law enforcement,
would continue to worsen can be halted by such efforts. It is possible to employ judicial
intervention as a stand-alone strategy or as a support strategy for other tactics. Judicial
intervention is a potent technique for problem resolution when it is applied effectively.

Laws intended to protect children typically have two primary purposes: first, to safeguard and
advance the well-being of the kid; and second, to forestall the mistreatment of children in the
community as a whole. In incidents of child abuse and exploitation, the legal system has been
shown to be ineffective in providing protection for children. It is imperative that comprehensive
regulations regarding the treatment of children and the prevention of cruelty to children be
enacted. For there to be any kind of meaningful protection for children, it is also vital for
governments to demonstrate a commitment to the enforcement and implementation of such laws.
There is a proverb that goes, "a child who is poor in resources should be rich in law."

There are a number of laws in India that pertain to children. The lack of political willpower is the
primary factor responsible for the fact that children in India are not receiving the benefits of the
laws that have been passed to protect and advance their rights. Politicians and law enforcement
officers have a history of supporting and protecting brothel owners, pimps, and traffickers in
exchange for financial compensation; as a result, they have an interest in breaking the law. The
ability of children to make their own decisions should be recognised in legislation. Children who
are older are able to comprehend and advocate for themselves in matters pertaining to their
rights. Giving children an education on their own rights as youngsters is the best way to protect
those rights and prevent them from being violated. The empowering of children in this way may
give rise to a children's movement. One such movement can be found in the United Kingdom
and is known as the Young People's Liberation Movement.

Each and every one of its participants is younger than 21 years old, and among other things, they
are demanding a halt to the sexual, physical, and emotional abuse of minors. In order to
effectively prevent the sexual abuse and exploitation of children, there is a requirement for
adequate legislation, improved law enforcement, well-coordinated international cooperation, and
educated communities. Children should be protected by the law, and those who hurt or exploit
children should be punished. It is essential to have powerful regulations in place to deter the
sexual abuse and exploitation of minors. It is essential to make people aware of the laws that now
apply to this topic. It is imperative that the community receives the message loud and clear that
the law will be enforced in its strictest form. Those who might be inclined to commit the offence
will consequently be warned that the commission of any such offence would result in severe
punishment. In and of itself, legal action cannot provide a comprehensive solution to the
situation. The perpetrators of child abuse and exploitation have a responsibility to undergo
rehabilitation while they are serving their sentences. This will help to prevent a repeat of the
abusive or exploitative behaviour once the offender is free to interact with children again. It is
critical that education and awareness activities on children's rights be organised and carried out.

Training on child rights, including national and international legislation, should be incorporated
into the curriculum of professionals working with children, such as judges, police, doctors, social
workers, teachers, and so on, according to a recommendation made by the United Nations
Committee on the Rights of the Child (UN Committee on the Rights of the Child). It is also vital
to educate the public on matters pertaining to children's rights; this will provide the average
person the ability to respond in an informed manner in the event that an emergency involving
children arises.

It is imperative that laws be changed, in addition to attitudes, in order to put an end to the abuse
and exploitation of children. In order to provide children with the opportunities they rightfully
deserve, our cultural, social, and economic ideals need to undergo fundamental shifts. When it
comes to satisfying the requirements that families have for support and help in caring for their
children, the government, local authorities, and non-governmental organisations all play a crucial
role in the process. The role of non-governmental organisations (NGOs) as watchdogs is to
ensure that the government carries out its responsibilities towards children and that current laws
are not allowed to only exist on paper but are instead put into practise to the advantage of those
for whom they are passed.

According to the World Health Organisation (WHO), there are 40 million children between the
ages of 0 and 14 who are victims of abuse or neglect and, as a result, require some form of
medical or social care. The sexual exploitation of children is one of the forms of child
maltreatment that has repercussions for the entire human race. It is a problem that affects the
entire world, and India is right in the middle of it. Child sexual abuse is defined by the World
Health Organisation as the exploitation of a child in a sexual act that the child does not fully
comprehend, cannot consent to, and is not developmentally prepared for. due of embarrassment
or a fear of the social stigma, the offence is almost never reported due of its taboo status.

Most of the time, the perpetrators are members of the family. It has a major negative impact on
the psychological, physical, mental, and emotional development of children. In spite of the fact
that it is a seminal piece of legislation, the passage of India's Prevention of Children from Sexual
Offences Act, 2012 in 2012 led to an increase in the number of cases of child sexual abuse that
were reported. Nevertheless, there are a number of problems with the law that prevent it from
being successfully implemented.

The fact that the Act has been applied to a vast number of cases despite having a very low
conviction rate is evidence of its inadequacy. This is due to the fact that it has not been
implemented. An revision to the POCSO Act was spurred by the considerable media coverage of
two horrendous child rape incidents (the rape cases of Kathua and Unnao) as well as countless
occurrences that were analogous to those cases. As a strong deterrent to criminals, it now
imposes stiffer and more severe sanctions, including the death penalty. Having said that, the Act
as it has been revised does have a few flaws, the most notable of which is that it does not address
a large number of key issues that the government must consider right now.

It is impossible to put the Act into proper effect because the new version of the legislation does
not include any provisions that would speed up investigations or trials. As a consequence of this,
it is necessary to educate legal, medical, and law enforcement organisations about the
complexities of the law's application so that they can collaborate effectively in the battle against
the crime of child abuse.

The Sexual Exploitation of Children Is A Growing Problem In India

Because it involves the offender using the child for their own sexual pleasure, child sexual abuse
is one of the most significant threats that can confront a child at any point in their development
before they reach the age of adulthood. There are numerous sexual favours that could be
involved, including but not limited to intercourse, oral sex, touching private areas, child
pornography, and voyeurism, amongst others. Children make up a large portion of India's overall
population, constituting approximately one-third of the country's entire population. 11% of the
children in this country have been victims of severe sexual abuse, and 50% of the children in this
country have been victims of some form of sexual abuse.

While boys account for roughly half of all child abuse victims, girls make up over half of all
victims of child abuse. According to a report that was just released by the National Crime
Records Bureau, there have been over 24,000 cases of child abuse that have been reported in
India over the course of the past six months. It is considered that crimes of this nature are rising
at an alarming rate in our country and must be addressed swiftly. The most child-related offences
were reported in the states of Maharashtra, Uttar Pradesh, and Tamil Nadu. Children are more
vulnerable to being abused because of factors such as poverty, a lack of sexual education, the
proliferation of obscene posters and internet material, and many harmful traditional practises.
Some examples of these practises include child marriage, caste-based discrimination, child
labour, and Devadasi. Poverty is unquestionably a key factor that contributes, but it is also
possible to find it in prosperous communities that are comprised of individuals of a variety of
religions and cultures. The fragmentation of the traditional nuclear family unit as it exists in
today's society is a second factor contributing to this problem.

Victims of sexual assault on children frequently do not come forward with their experiences
because these kinds of crimes are typically committed in private and children rarely tell their
parents about their experiences. If they do, they are frequently pressured to keep quiet out of fear
of being publicly humiliated and shamed, which is especially common when the offender is a
member of their own family. Child sexual abuse can be identified by a number of telltale signs,
including aberrant or seductive behaviour, genital bruising or bleeding, trouble sitting or
standing, and an unwillingness to be around other children or adults. Abuse of a child's sexuality
can have profound psychological and physiological repercussions for the victim. A victim's
anxiety, despair, or attempts at suicide are common signs of abuse, as are their aggressiveness,
disobedience, loss of self-confidence, and dangerous behaviour. The victims are left with feelings
of isolation, fear, guilt, and concern after the crime has been committed.

WHO IS A MINOR?

Before the Juvenile Justice legislation of 1986 was passed, each state in India had its own
children's legislation. This means that the term "child" is defined differently depending on which
Indian law you look at. The provisions of each children's act were distinct from one another, and
this included the definition of what constitutes a child. A boy child was a man under the age of
16 years old in the states of Maharashtra and Kerala, while a girl child was a female under the
age of 14 years old. On the other hand, in the states of Madhya Pradesh and Uttar Pradesh, both
the boy child and the girl child were under the age of 16 years old.

In accordance with the Juvenile Justice Act, a boy is considered to be a juvenile if he has not yet
reached the age of 16 years, and a girl is considered to be a juvenile if she has not yet reached the
age of 18 years. In accordance with the Women's and Children's Institution (Licencing) Act of
1956, the term "child" refers to a male or female who has not yet reached the age of 18 years.
According to the Child Labour (Prohibition and Regulation) Act of 1986, a child is defined as an
individual who has not yet reached the age of 14 years old. In accordance with this statute, the
definition of 'kid' is taken from Article 24 of the Constitution.

Employing children younger than 14 years old in any industry, mine, or other dangerous
occupation is against the law according to the Constitution of the United States of America. A
youngster who is younger than 14 years old is prohibited from working in a factory per the
Factories Act of 1948. Due to the inherent dangers of working in a mine, the Mines
(Amendment) Act of 1983 makes it illegal for anyone less than 18 years old to perform any kind
of labour in a mine or any portion of a mine. According to the Immoral Traffic (Prevention) Act
of 1986, the definition of a child is a person who has not yet reached the age of 16 years, while
the definition of a minor is a person who has reached the age of 16 years but has not yet reached
the age of 18 years. Under the Indian Majority Act 1875, a person is considered to have reached
the age of majority once they have completed their 18th year. Although, according to the Child
Marriage Restraint Act of 1929, the definition of a child is a person who, if they are male, has not
reached the age of 21, and if they are female, have not reached the age of 18, respectively.

LEGISLATIVE & JUDICIAL RESPONSE

The United Nations was accepted by India. 1989 saw the adoption of the Convention on the
Rights of the Child. It was the very first international agreement of its kind that was legally
binding and especially applied to the protection of children. In addition, the Act mandates that
governments take preventative measures to shield children from any kind of sexual abuse or
exploitation. Children in India are afforded specific rights and opportunities by the Constitution,
which helps to assure their continued existence and healthy development. Children are the
nation's future, so it is critical that we invest in their development.

(i) The Constitution of India grants the state the authority to confer certain benefits on children
for the purpose of fostering their growth.

(ii) The Constitution of India mandates that children and adolescents be protected against
exploitation, moral and material abandonment, and healthy growth in terms of freedom and
dignity. Additionally, the Constitution mandates that children and adolescents be offered
opportunities and facilities to grow in a healthy manner in terms of freedom and dignity.

(iii) The Constitution safeguards the well-being of minors by prohibiting them from working in
hazardous occupations such as factories or mines before they reach the age of majority. In
addition, the Constitution imposes on the state the responsibility of ensuring that all children
under the age of fourteen be provided with an education that is both compulsory and free. In
addition, the Constitution of India stipulates that the state must provide early childhood
education and care services available to all children up until the age of six.

PRE-POCSO Laws

Abuse of children on a sexual level has been widely ignored in India, and until very recently, it
was not even considered a crime. In India, only a few of sexual offences committed against
juveniles were officially recognised as crimes, including rape, prostitution, and human
trafficking. The wide provisions of the Indian Penal Code from 1860, which made no distinction
between the treatment of adult and juvenile victims of the same crime, were applied to each of
them individually. Infringing against the modesty of a woman or girl in violation of Section 509;
outraging the modesty of a woman or girl in violation of Section 354; and infringing upon the
modesty of a woman or girl in violation of Section 509. Sections 361 and 363: Kidnapping a
minor from the custody of a legal guardian; Section 363A: Kidnapping or maiming a minor to
beg; Section 361: Kidnapping a minor from the guardianship of a legal guardian; Section 361A:
Kidnapping or maiming a minor for the purpose Sections 366A and 366B: Procurement of a
minor girl and bringing a girl

A violation of Section 373 occurs when a juvenile is purchased for the purpose of prostitution.
The Penal Code's Section 375 addresses rape, and Section 376 addresses the varying degrees of
severity of punishment for different types of rape. There are four unique types of rape, each of
which is penalised differently according to Section 376 A, 376 B, 376 C, and 376 D. This statute,
which dealt with sexual acts that were against to nature and were frequently invoked in situations
involving the sexual abuse of male adolescents, was known as Section 377. The Information
Technology Act of 2000 made it illegal to publish or send pornographic material of any kind.

The Immoral Traffic (Prevention) Act, 1956 was passed in order to criminalise prostitution and
human trafficking in the Indian subcontinent. This act was passed in 1956. The Protection of
Children Against Sexual Offences (PCASO) Act is a new piece of comprehensive legislation that
was enacted as a response to growing concerns about the rising trend of sexual violence against
children in India, as well as the absence of specific legislation addressing a range of various
other forms of sexual exploitation of children, such as Child Sexual Assault (not amounting to
rape), Sexual Harassment, and Child Pornography.

POCSO Act, 2012; Salient Features

A law that is not specific to either gender protects children from being sexually assaulted,
harassed, or exposed to pornography by imposing severe penalties, providing child-friendly ways
to report offences, recording evidence, and investigating them, and keeping the case moving
quickly and efficiently through a special court. The age of majority for a child is defined as 18
years old under the law. It addresses several forms of sexual abuse, such as non-penetrative and
penetrative assault, sexual harassment, and pornography, among other forms of sexual abuse.

A sexual assault is considered to be "aggravated" under this law when it is perpetrated by a

person who is in a position of trust or authority, when the victim suffers from a mental illness, or
when the victim is younger than a specified age. Although it was criminalised under a variety of
statutes, the precise nature of the pornographic offence was never specified in any of these laws.
The sexual exploitation of children is now officially defined as any picture, video, digital, or
computer-generated image that appears like a real child, as well as any image that has been
manipulated or altered to appear as if it were a genuine child. This includes images that look like
they were taken from a real child but were actually made by a computer. In addition, it makes it
illegal to sexually exploit children and prescribes the same punishment for those who assist in
committing the crime as well as those who commit it themselves.

The following are examples of child-friendly approaches to recording testimony: conducting the
interview at the child's home; prohibiting the detention of any youngsters at the police station
during nighttime hours; and transcribing the child's testimony word for word. The child requires
the help of an interpreter or some other kind of specialist. A girl will have a medical checkup
performed on her by a female doctor in the presence of a guardian or another member of the
family who the child may confide in. In order to prevent the youngster from being subjected to a
severe interrogation or character assassination while the processes of the trial were being carried
out, frequent breaks were required.

The identify of the youngster was concealed so that the media would not be able to disclose the
child's name without first receiving permission from the Special Court. In addition, the law
mandates the mandatory reporting of offences, and there are consequences for failing to report an
offence that is mandated by the law. The Act places a limit of thirty days on the amount of time
that can be spent gathering evidence, and it mandates that trials must be concluded within one
year, if at all possible, in order to be considered timely.

POCSO Act: Recent Developments

For the purpose of discouraging potential sexual predators from committing the heinous acts that
have been seen in recent tragedies such as Unnao, Kathua, and Muzaffarpur Shelter Home, the
law has been further updated to increase the severity of punishments for various crimes,
including the possibility of capital punishment for sexual assault and aggravated penetrative
sexual assault. This has been done in an effort to make the law more effective.

Under the previous statute, the minimum sentence for penetrative sexual assault was seven years
in jail; under the new Act, that sentence has been increased to ten years. A subpart of the revised
section states that the minimum penalty for a sexual assault committed against a person under the
age of 16 is 20 years in prison, which may be extended to life in prison and a fine. In addition,
the subpart states that a fine may be imposed. The Revised Act includes two new categories of
severe penetrative sexual assault that were not previously present. The consequences for this
offence can range from ten to twenty years in jail all the way up to the death penalty. This is the
case when a kid is attacked to the point of death, as well as when a sexual assault occurs during a
natural disaster or another condition of equivalent ferocity.

The concept of aggravated sexual assault has also been enlarged to cover instances in which the
attack was carried out during a natural disaster or in which children are administered or helped to
acquire hormones or chemical substances in order to reach sexual maturity before their
biologically expected age. Both of these scenarios fall under the category of "aggravated sexual
assault." Additionally, the penalties for storing pornographic material for commercial purposes
have been increased as a result of this modification. Additionally, it included two additional
reasons that are not subject to the destruction, deletion, or reporting of pornographic material
affecting a child and the transmission, display, and distribution of such material other than for the
purposes of reporting the violation.

The legal system is now aware of the rise in criminal activity and the sexual exploitation of
children, and as a result, it has made it a priority to provide advice on improving security and
rehabilitating victims. Through a public interest litigation (PIL) petition that they submitted to
the Supreme Court, the NGO Sakshi v. Union of India (AIR 2004 SC 3566) demonstrated that
the existing criminal laws were incapable of adequately handling cases of child sexual abuse at
the initial stage. When a female victim was sexually penetrated, the crime was prosecuted under
Sections 375 and 376(2) of the Indian Penal Code (IPC), and when a male victim was sexually
penetrated, the crime was prosecuted under Section 377 of the IPC. Sections 354 and 509 of the
Indian Penal Code dealt with sexual offences that did not involve penetration when they were
committed against a female kid. However, a comparable regulation did not exist when a male
child was the victim of a sexual offence.

The Supreme Court of the United States released rules on how to properly handle trials involving
allegations of child sexual abuse. These guidelines recommend that the accused's face be
concealed from the victim or witnesses, that victims be allowed to take breaks throughout the
trial, and that unnecessary victim harassment during cross-examination be limited. The POCSO
Act now includes these rules as part of its language. The Supreme Court of India stated in the
case of Shankar Kisanraokhade v. State of Maharashtra 5 SCC 546 (2013) that sexual abuse can
take numerous forms, such as sexual molestation, sexual assault, or sexual exploitation, and that
a child may be sexually assaulted by a person who is already familiar to them.

In the case of Gaurav Jain v. Union of India, AIR 1990 SC 292 (2004), the Supreme Court of
India mandated that the federal and state governments as well as voluntary organisations be
responsible for protecting adolescents from being forced into prostitution and offering them
opportunities for rehabilitation and a better life. In the case of Vishal Jeet v. Union of India (AIR
1990 S.C. 1412(1990), the Supreme Court of India stated that child sex abuse is a socio-
economic problem and issued an order to state governments requiring them to ensure that law
enforcement agencies take action against this heinous crime. In the case Nipun Saxena & Anr v
Union of India WP (civil) 565/2012, the Supreme Court of India emphasised the need for further
care and protection for child sexual assault victims by emphasising the necessity of keeping their
identities and names secret due to the victims' young ages.

Vulnerabilities presented by the Act:

The legislation has been changed to include harsher punishments; nonetheless, it still contains
loopholes that need to be closed as soon as possible. The increased usage of the death sentence
has the potential to lower the number of reported murder cases as well as the number of people
who are murdered. In most cases, the perpetrator is someone the victim knows, which makes it
less likely that the victim will disclose the incident. In addition to this, there is a much increased
possibility that a victim may be raped and then murdered. The victim and the victim's family are
not protected under the modified Act in situations in which the accused holds a position of
power.
The Unnao Rape case demonstrates that even if the maximum sentence for violent sexual assault
was just doubled, there is still room for improvement. The rewritten law does not include a
strategy for compensating victims, ensuring an adequate police investigation, or providing an
effective means for reducing the number of cases that are awaiting trial. It disregards concerns
about young adults engaging in consensual sexual activity because the existing law considers
individuals between the ages of 16 and 18 to be too immature to engage in sexual activity. This is
a loophole that families routinely exploit in order to hide elopements and inter-caste weddings.

The circumstances of the Covid-19 Pandemic were as follows:

The COVID-19 outbreak presented a number of unique challenges, not the least of which were
issues in the medical, social, and economic spheres. Children are the ones who are feeling the
most profound anguish right now, which is manifesting itself in a particular way. In spite of the
fact that children make up a relatively tiny fraction of the population affected by COVID-19, the
global pandemic has had a disproportionately large effect on the ability of children to attend
school in a safe and healthy setting. Because of national lockdowns, about one billion children
around the world have been prevented from attending school for at least three to four months.
This has occurred in every region on the planet. As a result of this development, sexual predators
are now able to damage children through the use of virtual environments.

During India's shutdown in April of 2020, the number of calls from distressed children to
CHILDLINE 1098, an exceptional service that deals with urgent requests for assistance from
women and children who are experiencing abuse or violence, increased by fifty percent.
CHILDLINE 1098 is an exceptional service that deals with emergency requests for aid from
women and children who are experiencing abuse or violence. The Supreme Court of India
acknowledged the gravity of the situation and took into consideration the fact that children
enrolled in state-run care programmes were subject to a substantial number of dangers.

The increasing prevalence of children and adolescents in India using internet-based

communication technologies has given rise to a new threat to their personal security. The most
recent research to come out of the U.S. According to research conducted by the National Centre
for Missing & Exploited Children (NCMEC) and the National Crime Records Bureau (NCRB),
between September 2019 and January 2020, at least 25,000 photographs depicting the sexual
abuse of children were uploaded to social media sites located in India. According to the India
Child Protection Fund, there was a significant increase in the number of people searching for
child pornography after the lockdown was announced. During the time that the government was
shut down, there was an observed surge in child sexual abuse material and photographs that was
95 percent more than normal.

The genuine issues that are associated with these numbers are a cause for concern, particularly in
light of the shifting landscape of education, which has shifted entirely online, and the fact that
"having continuous parental supervision is not a realistic choice in households with two working
parents." Furthermore, in many instances, schools urge parents to refrain from hovering around
their children in the classroom in an effort to reduce the likelihood of helicopter parenting. It
could make children more prone to being sexually abused over the internet. Protecting minors
from sexual assault is an absolutely vital component of upholding the right to dignity guaranteed
by Article 21 of the Indian Constitution. Spending more time online could put you at risk of
being groomed and exploited in both online and offline settings. Children are at risk of being
coerced into engaging in activities that are potentially harmful or illegal. For instance, young
people can be coerced into creating and posting sexually explicit images of themselves, which
can then be used by others to harass and abuse them.

Abuse of children in a sexual manner is a social problem that has far-reaching implications for
all members of the human race. It is a covert crime that often goes unreported, either because it is
performed by persons who are acquainted to the victim, or because the victim is ashamed to
report the abuse because of social shame, or for any other reason, and is forced to suffer in
silence and without help. Regardless of the reason, it is a crime that frequently goes unnoticed.

Following the implementation of the POCSO Act, there has been a discernible increase in the
quantity of cases of sexual assault on children that have been reported in India. Although it made
an effort to reverse the growing trend in sexual offences committed against children, it was not
successful in doing so because its effective execution contained significant flaws. In order to
achieve a swift trial and avoid the re-victimization of people who have been harmed, it is
necessary for the agencies that are responsible for its implementation to make efforts that are
both dedicated and coordinated in nature.

In response to the disturbing rise in the number of sexual offences committed against children as
well as the heartbreaking gang rapes that occurred in Kathua and Unnao, the POCSO Act was
revised to include harsher penalties in order to serve as an efficient deterrent. However, this is
not sufficient because it does not include a workable method for dealing with the enormous
backlog of cases that have been registered under the Act, and it does not address a lot of other
concerns that are relevant.

The K concerns include the following: moral and sexual education should be made mandatory in
all schools and colleges in order to increase awareness and alertness among young people
regarding the growing number of sexual crimes and to assist them in comprehending the many
types of sexual violence. It is necessary to educate parents on effective parenting practises
because they are the only ones who can create the safest environment possible that is beneficial
to their child's health and well-being. It is the child's parents' responsibility to ensure that their
children receive this education.

The issue of child sexual abuse, often known as CSA, has only recently been brought to public
attention as a concern in India. The passage of a specialised law in 2012 called the Protection of
Children against Sexual Offences (POCSO) was an encouraging step. This law made a variety of
behaviours, such as raping children, harassing children, and using children for pornographic
purposes, illegal. The law requires the establishment of Special Courts in order to expedite the
judicial process for cases involving CSA. The paper focuses on the benefits that were planned to
come from the application of the law in the Indian setting as well as the unanticipated effects that
could result from doing so. There is little doubt that the passage of POCSO has been a significant
step forward in ensuring children's rights and advancing the cause of protecting children against
sexual abuse. This has been done in combination with a related piece of legislation to crack down
on child weddings called the Prohibition of Child Marriage Act 2006, which was passed in 2006.
The purpose of the law, as well as its text and spirit, is to protect children from being sexually
abused. The law defines a child as someone who has not yet reached the age of 18 years old.
However, making all sexual activity by anyone under 18 years old a crime is fraught with
potential complications.
CSA in India

Growing concerns about female infanticide, child rapes, and institutional abuse of children led to
the commissioning of the first large-scale government-sponsored research study to analyse the
scope and character of child abuse in India (Kacker et al. 2007). The purpose of this study was to
determine the prevalence of child abuse in India as well as the different types of abuse that occur.
The research was conducted using a technique that was well thought out, and it examined a total
of 13 states (two states from each of the six geographic zones that make up the country). These
states ranged from having the highest to the lowest crime ratesinci of acts committed against
children.

The sample was selected in a purposeful manner and consisted of 12,447 children, 2324 young
people, and 2449 stakeholders. These individuals represented five distinct evidence groups,
which were as follows: children in the home, children in the workplace, children in schools, and
children living on the streets and in institutions. According to the findings of the study,
emotional, physical, and sexual abuse are all very common in all of the states that were
investigated. While 69% (n = 12,447) of children reported being physically abused, only 53% (n
= 12,447) of children allegedly suffered some type of sexual assault. However, emotional abuse
was recorded by every other child. "persons known to the child or in a position of trust and
responsibility" were responsible for around fifty percent of the sexual abuse cases that were
reported (Kacker et al. 2007: vii). According to the findings of Carson et al. (2013)'s review of
the present state of knowledge on child sexual abuse (CSA) in India, empirical research reveal a
significantly higher prevalence of CSA than was previously acknowledged by either the
government or families. In addition, there is a disparity between rural and urban areas and
regions in terms of the prevalence of CSA across the country.

Girls are more susceptible to sexual abuse than boys, despite the fact that boys also reported a
high rate of being victims of sexual abuse and are subject to greater societal stigma. Finally,
Carson et al. (2013) imply that sexual exploitation and abuse happens in households that span the
socioeconomic and religious spectrum. This is despite the fact that there is a strong correlation
between poverty and sexual exploitation and abuse. However, conditions that make CSA more
likely, such as poverty, overcrowding, living arrangements that include extended family
members, an abundance of children living on the streets, and a lack of leisure opportunities
within families (Carson et al. 2013), are by no means unique to India. Given the large population
and dense population that exists in India, it is possible that their impact will be exacerbated or
magnified.

According to Smallbone et al. (2014), the prevalence of CSA in the Indian context may be due to
a complex combination of individual, environmental, and situational factors that are claimed to
facilitate the condition. The lack of empirical research, on the other hand, makes it impossible to
draw definitive conclusions.

According to HRW (2013), children who have been sexually assaulted are profoundly let down
both by the inability of the criminal justice system as a whole to address their grievances and by
the social ostracism that is associated with such abuse. According to the Kacker et al. (2007)
study, just 3% of the CSA offences that were discovered were reported to the police (HRW
2013). Given the humiliation and the associated socio-cultural stigma, it should not come as a
surprise that CSA is chronically underreported. This is especially true when the abuse occurs
within the setting of a family (Choudhury 2006). This phenomena is not specific to India but is
typical to collectivist societies in other Asian nations, where an individual's experience is ignored
in order to protect the family from the humiliation associated with sexual abuse (Back et al.
2003; Stoltenborgh et al. 2011). This is a problem that has been documented in India (Back et al.
2003; Stoltenborgh et al. 2011), but it is not limited to India.

Legal response to CSA

Prior to the year 2012, the only sexual offences committed against children that were punishable
by the law were those that fell under one of three sections of the Indian Penal Code (IPC) that
were not specifically geared towards minors. The only crimes that were recorded were rape,
which is defined as "sexual intercourse without consent" (section 376), outraging the modesty of
a woman, which is defined as "unspecified acts," (section 354) and unnatural acts, which are
defined as "carnal intercourse against the order of nature with any man, woman, or animal" (anal
sex, homosexuality, or bestiality), which are all defined in section 377.

As a consequence of this, other types of sexual assaults, harassment, and exploitation that did not
involve penetration were not expressly regarded as crimes and were therefore not recorded (if
they were reported). It's possible that increased activity on child protection concerns in the media
and public debate played a role in the Indian government establishing a specific law in 2012
called "The Protection of Children from Sexual Offences (POCSO)". This Act makes it illegal to
engage in sexual assault, sexual harassment, or pornography with a minor who is under the age
of 18, and it requires the establishment of Special Courts in order to speed up the judicial process
for cases involving these offences.

The legal drinking age

If a person under the age of 18 is involved in any sexual act that is mentioned in POCSO, then
such act is automatically considered to be a criminal offence. There are no exceptions to this
rule. This is true irrespective of the question of consent or the age of the 'perpetrator'. Due to the
fact that the law inexorably criminalises sexual activities in those under the age of 18, the ideas
of victim and perpetrator become interchangeable in situations involving children engaging in
consensual sexual activity with one another. The Act does not give minors any kind of sexual
autonomy, which means that they could be held legally responsible for sexual activities if they do
those acts. POCSO automatically classifies a juvenile as a "perpetrator" of CSA as a criminal
who must be "dealt with in accordance with the provisions of the Juvenile Justice (Care and
Protection of Children) Act 2000" [section 34(i)].

On the other hand, in 2013, a judge from the Special Court disproved the idea that the human
body of a person younger than 18 years old is the property of the state and that the state therefore
has the authority to restrict individual autonomy regarding sexual behaviour. While rendering a
decision in a case in which a woman of 15 years of age freely eloped with a man of 22 years of
age and married him, the judge came to the conclusion that criminalising such activity would not
serve the aim of the legislation (TOI 2013). Therefore, there is a conflict between the law's literal
interpretation and its intended purpose. An individual's perspective of the events will have a
significant impact on the conclusion reached regarding whether or not an allegation of sexual
activity between minors was coerced or voluntary. The law leaves room for abuse in either
direction, whether it be overly restricting of the autonomy of children or overly permissive of
CSA.

Last but not least, according to Oz and Balshan (2007), the lack of appropriate support and
professional assistance for the victim and their family can sometimes result in more
psychological damage and stress. According to the Maharashtra State Consultation in 2014,
although Child Welfare Committees in India are supposed to provide this help, they are not truly
functioning satisfactorily. Therefore, it presents issues not only for "victims," but also for
"perpetrators" under the age of 18; the latter are criminalised, but they are not given the
professional care that they might require.

Reporting that is required by law

POCSO (section 19) mandates that all citizens, but particularly those who work with children
and young people in the education, social, religious, and health sectors, must report suspected
cases of child sexual abuse. This requirement applies to all citizens. The violation of this
provision brings with it the potential for a prison sentence of up to six months and/or penalties,
both of which are intended to encourage conformity with the law. Evidence from other nations
(the United States of America and Australia), such as Kim et al. 2012 and Ainsworth 2002,
suggests that obligatory reporting of child sexual abuse has had mixed results. According to the
findings of the Report for the Royal Commission into Institutional Responses to Child Sexual
Abuse (Mathews 2014), failures to report are rarely prosecuted in various jurisdictions. This is
because the goal of mandatory provisions is to encourage reporting, not police it; hence, the
purpose of mandatory provisions is to encourage reporting. As a direct consequence of this, the
law in the Australian state of New South Wales has been changed to remove the penalties for
failing to disclose CSA (Mathews 2014). The required reporting obligation imposed by POCSO,
on the other hand, brings up three issues that are unique to the Indian context:
When sexual activity between people under the age of 18 is made illegal, it is effectively
removed from the purview of health professionals and school counsellors. These individuals may
be hesitant to offer safe sexual advice or treat the effects of unsafe or reckless sexual practises
because doing so could compromise patient confidentiality and/or involve getting involved with
reporting it to the authorities.

The law presents a number of challenges for organisations, charities, and institutions that engage
with children and communities that are economically disadvantaged and who are deeply
committed to establishing trusting connections with young people. These individuals and groups
include those who work with poor and backward populations. If they are legally obligated to
report any knowledge of consenting, albeit underage sex, then a breach of trust would gravely
imperil their efforts to interact with and work with young people. This would put their jobs in
jeopardy. Inadequate training for professionals who work with children (such as physicians,
teachers, psychologists, social workers, and counsellors, among others) on how to deal with the
knowledge of sexual activity and how to respond correctly can be an additional source of
concern (Goldman 2010).

The requirement of mandatory reporting raises the question of who is accountable for, or ought
to be responsible for, the enforcement of this legal obligation. The cops are understaffed and
overworked, and they can hardly keep up with their workload. It is possible that cases of failure
to report may be missed if a legal requirement complete with penal and financial punishments is
prescribed, but this cannot be done without first thinking out the method for its enforcement,
which could result in a lack of responsibility. There is a risk that the law may simply be utilised
in hindsight to penalise infractions, rather than guaranteeing that suspected cases of CSA will be
reported in a timely manner by the proper authorities in appropriate circumstances.

An early determination by an appropriate authority that sexual actions that occur between
consenting adults are not criminal acts could be one approach to addressing the issue at hand.
Consequently, the occurrence needs to be reported; nevertheless, decisions on the registration of
an offence and the investigation may be left up to investigatory discretion.
Age determination

The age of the victim as well as the age of the person who committed the crime is difficult to
ascertain. According to subsection (2) of section 34, the Special Court has the authority to assess
a person's age; however, there are no specific standards that outline how they should carry out
this function. According to Schmeling et al. (2003), the methods used by forensic scientists to
determine the age of a living person can be highly imprecise and convoluted. This is a widely
accepted fact.

The opinion of a specially constituted Medical Board may be useful in determining age;
however, it cannot be the only or conclusive factor in doing so (Supreme Court of India 2008).
This was the decision made by the Supreme Court of India in the case of Babloo Pasi vs. State of
Jharkhand and Anr. The court stated that it is very difficult to determine a person's age in the
absence of birth certificates or other official documentation.

A hyper-technical approach should not be used, according to the Supreme Court, and the court
should err on the side of giving the juvenile the benefit of the doubt while also ensuring that the
law is not being abused in any way. According to POCSO, the ages of both the victim and the
perpetrator play a significant role in establishing if and how the Act would apply, as well as in
influencing the outcome throughout the charging and trial stages. This could present a difficulty
in developing nations such as India, where a significant number of births are simply not reported
and where significant portions of the population do not have documentation such as birth
certificates or school leaving certificates to provide proof of age since they did not complete their
education.

Interactions between these three problems and the effects they have on marriages between
children

Laws do not operate in a vacuum, and it is not uncommon for the best intentions codified in laws
to be rendered meaningless in the face of real-world circumstances. In this particular instance,
the legal age of consent and required reporting duties of POCSO, along with the difficulties in
determining age, could result in the criminal justice system facing a greater number of challenges
than was originally envisaged. The purpose of the POCSO, in conjunction with the Prohibition of
Child Marriage Act of 2006, is to safeguard young women from being coerced into getting
married at an early age.

The cultural and social conventions favouring early marriages in India mixed with the
individual's right to sexual autonomy can provide obstacles to the accomplishment of this goal,
despite the fact that it is a worthy goal to pursue. According to a recent analysis based on the data
from the census, in India one in six women were married before they turned 18 years old.
Furthermore, 17.5% of women (6.5 million) had been married within the previous four years
prior to the time when the census was performed (Shaikh 2015).

According to POCSO, there are therefore potentially 6.5 million (and increasing) instances of
legal action that could be taken. In situations in which a girl between the ages of 15 and 18 gives
her agreement to being married, this could result in a significant waste of time and resources on
the part of the criminal judicial system. In a context of mandatory reporting, ignoring the role
that permission plays in sexual activity between minors, along with the imprecise science of
determining a person's age, has the potential to lead to misuse of the legal system or mistakes in
the administration of justice.

The mandatory connection of UIDFootnote2 (Unique Identification) with victim and offender
data in cases involving underage parties at the time of reporting in order to assist in determining
the age of the victim and the perpetrator is one potential solution to this problem. There are many
other potential solutions to this issue. However, this may give rise to a number of ethical
concerns and may be in direct opposition to the goals that were established for the UID initiative
in India when it was first conceived.

There is little doubt that POCSO 2012 has made a substantial contribution to the ongoing effort
to combat the issue of CSA in India. It has defined and made illegal a variety of undesirable
sexual activities that are harmful to children and constitute a risk to their wellbeing. The quickly
rising number of instances indicates that the law has made a significant contribution in educating
the public, sensitising the criminal justice system, and making the reporting of CSA not only
acceptable but also mandatory. This is evidenced by the fact that the number of reported cases is
rapidly increasing. The law is quite all-encompassing and possesses certain distinctive
characteristics of its own. On the other hand, the execution of the law in the Indian context can
be complicated by three primary concerns that have been raised about both the letter and the
spirit of the law.

The concerns at hand include the inflexibility regarding the age of consent for sexual activity for
minors under the age of 18, the mandatory reporting responsibilities, and the imprecise character
of age determination. In addition, the Prohibition of Child weddings Act of 2006, which was
passed in India in order to safeguard vulnerable children and fulfil the government's aim to
outlaw child weddings, in conjunction with the POCSO Act of 2012, ought to be effective in
preventing marriages between minors. The potential for waste and loss of resources cannot be
disputed, despite the fact that the concerns that have been described above exist in an
environment in which societal and cultural norms continue to permit or even actively encourage
the marriage of children.

Because the existing legislation on sexual assault does not adequately identify or reflect the
many different forms of sexual assault that can be committed against women in our country, it
became clear that a new law on the issue was required. In the case of Sakshi vs. union of India,
the Supreme Court

India has acknowledged the deficiencies in the law concerning rape and had proposed that the
legislature make the necessary amendments to the statute.

After conducting an investigation into the entirety of the IPC law pertaining to rape and sexual
assault, the law commission recommended that the law be completely rewritten.

The 172nd report of the Law Commission was used as the basis for the bill that was drafted by
Ms. Kirti Singh advocate and legal convener of AIDWA to amend the laws relating to sexual
assault in Section 375, 376, 354, and 509 of the Indian Penal Code as well as the relevant
sections of the Code of Criminal Procedure 1973 and the Indian Evidence Act 1872. The
recommendations were derived from the results of a nationwide poll taken on the subject, which
was conducted by the National Commission for Women.
CHAPTER – 2

Rape Laws in India: Limited, Conservative and Devoid of Gender- Neutrality

“Rape, the most heinous crime is still occurring in our society. Even after the
Delhi gang Rape case so many protests took place; a new law has been passed
but still the situation has not changed a bit. Recently a Mumbai based photo
journalist was raped. When some journalists from a well-known paper house
went to take interview in her locality; they got to know that nobody from the
survivor apartment aware that the girl is from their locality. So the question
arises why still now the survivor of the rape feels ashamed and prefers to be
silent. This is one of the main reasons that most of the rape victim does not file
an FIR. They think if society got to know about this her reputation will be
ruined and rest of her life will be hell. That is the reasons why the crime like
rape is still happening in our so-called modern society. In this project I will try
to analysis development of rape laws from the social transformation
perspective.”

I. INTRODUCTION
(A) Overview
There has been a disturbing spike in the number of incidences of violence based on gender.
Rapes, acid assaults, dowry deaths, domestic violence, eve-teasing, and murder are the
various types of instances that have been categorised. India holds a unique position with
regard to the prevalence of gender-based violence in its endemic manifestations, despite
the fact that crimes motivated by gender are not restricted to any one nation. In spite of
the persistent efforts of commissioners, activists, and even the officials responsible for
establishing laws, the number of crimes has not decreased. On the other hand, there has
never been anything close to the current level of growth.

There is a long tradition of gender-based violence in India. From the JC Bose rape case2 to
Priyanka Reddy's violent rape, Laxmi Agarwal vs. Union of India3, and many other cases
that are 'forgotten' or haven't been cruel enough to make a space in our memory, India has
experienced an increase in such horrible crimes. But the fact that many of the victims do
not even have legal recourse is much more upsetting than the rise in the number of crimes
of this type. Not the rules, but the crimes themselves have evolved over the course of time
to become gender neutral. We not only have women who are victims of such atrocities,
but we also have men who are victims of sexual harassment or 'rape,' which is not even
recognised in the International Criminal Code. Another crime that does not receive
sufficient legal acknowledgment is rape committed within a marriage.

The problems that have been ignored for too long require immediate attention from everyone
involved. The critics have referred to Delhi as the "Rape Capital" because to the
horrifying rape numbers that have been found in India. And the figures on male rape are
not even included in the numbers that have given this city its reputation as a dangerous
place to live in. Furthermore, although we delight in praising the low rates of divorce in
India, we disregard the rate of domestic violence and the requirement to handle marital
rape as a crime. This is despite the fact that both of these issues need to be addressed. We
need to address the flaws in the sociopolitical system we live in as well as the
inadequacies in the Indian criminal justice system in order to combat these egregiously
heinous acts. Only then will we be able to bring a stop to these atrocities.
(B) The Challenge of the Research

The purpose of this research article is to investigate whether or not a rape law that does not
discriminate based on gender is successful in the Indian context. The researcher has made
an effort to respond to the concerns related • What aspects of gender neutrality are
present?

• What are the different aspects of a law that does not discriminate based on a person's
gender?

• What are some arguments for and against the implementation of gender-neutral laws?

• What kind of effects and repercussions does having a law that is gender neutral have?

Is there a requirement for gender-blind legislation in cases involving caste discrimination,

community strife, incarceration, and war crimes?

• If it needs to be totally gender neutral, or if, as many people have proposed, a compromise
solution in which only the victim needs to be gender neutral, which one should be
adopted?

(C) The goals of the research are as follows:

• To do research on rapes committed during marriage.

• To do research on the gender bias that exists under rape legislation.

• To conduct research into the possibility of revising our rape laws.

• To do research into the reasons or causes behind rapes that have occurred in India.

• Conduct research on the sector of Indian society that is most affected by rapes.

(D) Investigative Queries and Concerns

• What constitutes gender neutral?

• The question of whether or not a legislation that does not discriminate on the basis of gender
would have a negative impact on the most defenceless segment of the population, namely
women.

• The unequal distribution of power that can result from being detained, living in a
community, or being at war.

• Determine whether the answer is to make it gender-inclusive for the offender but not for the
victim.

• The question of whether or not rape during marriage constitutes a serious criminal offence.

(E) Hypothesis

1. There is an immediate need to address the problem of sexual violence against men and
members of the transgender community.

2. If the legislation were written in a way that was fully gender neutral, it would work against
the interests of female rape victims. As a result, one possible solution would be to modify
the legislation so that it punishes perpetrators according to their gender while also
protecting victims regardless of their gender.

3. There should be a distinct legal framework for exacerbated cases of caste discrimination,
communal conflicts, and war crimes

II.REVIEW OF LITERATURE

Novotny (2003), in an essay published in the Seattle Journal of Social Justice, expressed
worry that gender neutral rape laws would lead to negative consequences for female
victims of rape and calls this a "backlash against feminism." Novotny's article is titled
 "Gender Neutral Rape Laws Would Lead to Negative Consequences for Female Victims
of Rape."

Winn (2011) places a strong emphasis on the role that the media plays in perpetuating the
untrue idea that strangers are more likely to commit the crime of rape than acquaintances.
As a result, "society as a whole gets a misconception about the reality of rape and what
defines the "average" rape from the slanted depiction that is given in the media. In light of
this, it is of the utmost need to educate women about the realities of the crime of rape.
Literacy in the media is one of these platforms that can contribute to the successful
completion of such a project. "analytical tools required to critically evaluate and
communicate messages in various mediums" is what is meant by the term "media
literacy."

In his article "Projansky (2001)," the author discusses, with reference to a variety of American
films, the many motivations, logistics, and repercussions that lie behind the commission
of rapes. If a woman appears to be powerful and independent, predators are more likely to
rape her in the hopes of transforming her into a meek and helpless human being.
According to the plots of several other films, the horrible event occurs as a direct result of
the girl's decision to go away with her boyfriend, which causes her to betray her parents.

Asaah (2007) conducts research on the prevalence of rape in order to illustrate the extreme
gravity of the problem and attract our attention to it. Regardless of the specifics of the
situation, rape will always be a common occurrence that cannot be prevented. The
purpose of this study is to provide a description of the repeated appearance of imagery of
rape in literature, with specific attention to novels written in African languages.

Arvind Narain (2013), writing a commentary on the Criminal Law Amendment Bill, 2013, in
an article published in the Economic and Political Weekly, quotes "There are no known
instances in India where women have committed sexual assault upon men and the
proposal to make sexual assault gender neutral in noncustodial situations is not based on
any empirical evidence."

By taking a qualitative approach to their research, Durosaro and Omotosho (2009) attempt to
 study the myriad of reasons for and consequences of intimate partner violence on
Nigerian women. In the community of Nigeria, domestic violence is a pervasive practise
that is commonplace. The vulnerability of women to the rape, assault, and beating at the
hands of their husbands results in considerable harm to the women's bodies as well as
their personalities. Surprisingly, however, the husbands who are suspected of committing
such assaults are not punished by the laws of Nigeria since the laws do not consider them
to be guilty.

Tsun-Yin Luo (2000) covers the interview of 35 rape survivors in order to observe and
analyse the harrowing events that these women were forced to go through. The interviews
were conducted in order to learn more about these women. The study also takes into
consideration the ways in which these upsetting encounters have managed to be
maintained in the culture that is generally accepted in China.

II. MARITAL RAPE: AN EXEMPTION ROBING WOMEN OF THEIR RIGHTS

Section 375, IPC,1860 defines rape as follows:

“A man is said to commit rape who, except in the case hereinafter excepted, has sexual
intercourse with a woman under circumstances falling under any of the six following
descriptions: —

(First) — Against her will.

(Secondly) —Without her

consent.

(Thirdly) — With her consent, when her consent has been obtained by putting her or any
person in whom she is interested in fear of death or of hurt.

(Fourthly) —With her consent, when the man knows that he is not her husband, and that
her consent is given because she believes that he is another man to whom she is or believes
herself to be lawfully married.

(Fifthly) — With her consent, when, at the time of giving such consent, by reason of
unsoundness of mind or intoxication or the administration by him personally or through
 another of any stupefying or unwholesome substance, she is unable to understand the
nature and consequences of that to which she gives consent.

(Sixthly) — With or without her consent, when she is under sixteen years of age.
Explanation.
—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of
rape.”

As a result, Section 375 defines the circumstances under which an act constitutes rape.
Nevertheless, there is a loophole in this statute, which states that "Sexual intercourse by a man
with his own wife, provided that the wife is not under the age of fifteen, is not considered to be
rape." As a result, rape that occurs within a marriage is not regarded as a criminal offence.
Surprisingly, it appears that expressions such as "against her will" and "without her consent"
have lost their meaning in relation to compelled sexual intercourse with the wife.

In India, laws pertaining to marital rape have a limited and insufficient range of coverage. The
Indian Penal Code makes an exception for rape committed against a spouse and only deems it a
crime in such cases where the victim's wife is younger than 15 years old.5As a result, there is
no lawful protection provided, against forced sexual intercourse, to a wife after the age of 15
years, which is contrary to the directives for human rights.

The patriarchal structure in society has always considered women as an insignificant possession
of her significant other or possibly guardian. This has been the case since the beginning of time.
As a result, rape was simply understood to be the act of stealing women from their so-called
"owners," and because of this idea, the bodies responsible for drafting laws do not take the
crime of spousal rape into consideration. Therefore, engaging in sexual activity has come to be
regarded as one of the rights or privileges that come with marriage.6 This approach has reduced
women to being little more than a protest of their husbands' want to be sexually satisfied,
completely neglecting their right to equality and consistency.

This philosophy can be traced back to Sir Matthew Hale, who provided an explanation as to
why marital rape is not considered to be a criminal offence. He supported his position with a
number of different arguments. In this post, we are going to conduct an in-depth analysis of the
justifications that he has provided. The following is a list of the justifications that were
provided: The contract theory, which views marriage as an agreement between a man and a
woman, and the consent theory, which postulates that consent to marry is also consent to
engage in sexual activity, as well as problems with proving a lack of consent and a fear of
making false accusations. Both of these theories assume that a woman automatically consents
to engaging in sexual activity the moment she marries.

According to what Hale has said, the institution of marriage signified an unchangeable
permission on the side of the woman for the physical connections. This contention serves as the
pivot point for the legislation that is still in effect today.7 Because sexual activity is
inextricably linked to the institution of marriage, an individual's assent to the marriage itself
serves as tacit permission to engage in sexual activity. be a result, a husband is not obliged to
seek a new consent for sexual intercourse each time, and the ability to compel sexual
intercourse has been referred to be a marital right of a husband.8 Despite the fact that these
arguments were offered during a time when marriage was thought of as an irrevocable bond,
this is no longer the case today. Despite this, it would appear that the justifications continue to
be acceptable to the legislative body.

Marriage is an institution that goes well beyond the basic act of sexual cohabitation. The
foundation of any human relationship is a connection that was forged through love and
confidence in one another. If a woman is raped when they are married, not only is this a
violation of her body and the control she has over it, but it is also a violation of the confidence
that she places in her marriage. The emotional scars that are left on a woman by rape during an
intimate relationship are something that has been disregarded by legislation, despite the fact
that rape during an intimate relationship has a physical impact on the woman. In a marriage, a
woman gives her agreement to her partner's companionship, trust, and cohabitation, and she
looks to her partner for protection above all else. To provide an exemption for rape within a
marriage, on the other hand, not only distorts the meaning of consent but also ignores the
violation of the trust and sanctity that is inherent in marriage. In the case RIT foundation v.
Union of India, the Delhi High Court did an excellent job of addressing this issue.9 The panel
of judges, which included the Acting Chief Justice Gita Mittal and C. Hari Shankar, came to the
conclusion that "Marriage does not mean that the woman is always ready, willing, and
consenting (for the establishment of physical relations)," as stated in their ruling. It is up to the
male to provide evidence that she gave her assent for the act. Therefore, giving one's consent to
get married cannot be taken as giving one's agreement to any and all subsequent sexual
encounters. If a guy does not take into account the consent of his partner, he should be held
accountable.

In addition, assuming that agreement to marriage constitutes consent to all forms of sexual
activity comes into focus the ideas of prolonged and implied consent. The judiciary has made it
very plain, via a number of different judgements, that in order for a sexual encounter to be
regarded as consensual, there must be a communication from the woman that is described as
"unequivocal." According to Explanation 2 of Section 375, the definition of consent is "an
unequivocal voluntary agreement when the communicates willingness to participate in the
specific sexual act." This willingness can be communicated through words, gestures, or any
other kind of verbal or non-verbal communication.10 Those who contend that permission to
marry should be interpreted as consent to all sexual encounters typically omit the word
"specific" that is included in the explanation. In the event that a woman has been raped, her
prior permission to any sexual action or flirtation cannot be taken into account as an indication
that she gives her consent to any and all future sexual acts. As a result, the judicial system has
repeatedly emphasised the importance of obtaining new consent for each and every'specific'
sexual conduct. Why does this theory not find any application within the context of the
institution of marriage? As a result, the marital rape exception attempts to breach the most
fundamental idea of consent, and as a consequence, it very much meets the criteria for being
considered rape as outlined in Section 375's first and second conditions.

The 'proof challenge in establishing lack of consent' is one of the additional arguments that
Hale provides, among other justifications. He contends that demonstrating that the woman did
not give her assent in the case of marital rape is the most difficult obstacle to overcome. This
argument rests on two premises: first, that the consent of marriage can be interpreted as consent
to sexual intercourse; and second, that it is difficult to prove that the wife resisted the sexual
intercourse. Both of these premises have been examined previously. However, despite the fact
that this "lack of consent" dilemma is a significant obstacle, the most difficult obstacle to
surmount is not the absence of proof but rather the tendency of the judicial system to be
sceptical of a marital rape claim.11 This inclination must be disproved by providing
corroborative proof, such as indicators of bodily injury or resistance, or the judiciary will not
accept it. This narrow perspective on how the absence of evidence might be proven ignores the
many other circumstances under which rape can be committed within the context of a marriage.
As part of its consideration of petitions seeking to criminalise spousal rape, the High Court of
Delhi made the observation that it is not required for rape to involve the use of physical force
because a man can rape his wife by subjecting her to financial pressure in order to coerce her
into having sexual relations with him. "The use of force is not a prerequisite for committing
rape. If a man puts his wife in a difficult financial situation and tells her that he will not provide
her money for the expenditures of the house and the children unless she has sex with him, then
the woman will feel she has no choice but to give in to his demands. After some time had
passed, she brought a rape charge against the spouse; the judge asked what would happen
next.12

It is not possible to state with absolute certainty that physical force will always come before
rape. When it comes to matters of the heart, or the institution of marriage, to be more specific,
physical coercion is not the only method a woman can be compelled to engage in sexual
activity against her will against the terms of a relationship. As a result, the courts ought to take
into consideration a variety of additional aspects of domestic violence.

The fact that the victim is expected to provide all of the evidence is another factor that
contributes to the difficulty of establishing that she did not give her agreement to the act in
question. This is one of the primary reasons why rape victims have not been successful in
having the courts decide in their favour, or even worse, why they have not even been able to
access the courts in the first place. It was entirely up to the lady to provide evidence that she
had not given her permission for the sexual activity that was in question. On the other hand, in
the case of Karnel v. State of MP13, the court ruled that a woman should not be viewed as an
accomplice in a rape case but rather as a victim of the crime. This decision was made because
the court believed that this would be more appropriate. It is inappropriate to approach her
testimony as a victim with the same level of mistrust as one would approach the testimony of
the criminal.14 In today's legal system, rape is one of the very few offences for which the
offender bears the burden of proof in demonstrating that the victim gave her agreement to the
act. It is only fair to place this duty on the accused in cases of marital rape as well, given that it
has already been placed on the accused in cases of rape committed against unmarried victims.
Instead than treating a married woman with suspicion, she should be handled in the same
manner as any other rape victim who has suffered from both physical and mental assault.

Even if the burden of proof is changed in cases of marital rape, there will still be another issue
that needs to be resolved, and that issue is whether or not to believe the woman's testimony
rather than the testimony of her husband. In the case of a rape committed against an unmarried
woman, the court has, on multiple occasions, questioned the lack of consent on the grounds that
the victim had a sexual history with the perpetrator. When it comes to situations of marital rape,
the problem becomes more complicated because the woman, in the vast majority of instances,
has a sexual history with the husband, and as a result, the court tends to lean towards presuming
permission was given. In the case of Haryana v. Prem Chand, this presupposition was dissected
in great depth during the proceedings.15 The Supreme Court of the United States heard the
appeal that was submitted by the appellants in this case and decided that a woman's sexual
history, character, or any conduct from her past cannot be used to assess the validity of her
testimony. This decision was reached after the court heard the appeal that was filed by the
appellants. After the horrific gang-rape case that took place in Delhi in 2012, this idea also
found a home for itself in the legal books. The 2013 Criminal law (amendment) bill, which was
passed following Mukesh & Anr vs. State for NCT of Delhi & Ors.16, de-recognized the
victim's sexual history and imputed a lack of consent in rape cases, thereby providing an
objective criterion for evaluating consent. The bill was passed in response to the court decision
Mukesh & Anr vs. State for NCT of Delhi & Ors.16.17

Therefore, it is necessary for the legislature and the judiciary to treat a victim of marital rape in
the same manner as any other victim of rape and to refrain from equating the perpetrator with
the victim in order to minimise the gravity of the crime.

Marital rape was included in the definition of domestic abuse in the Protection of Women from
Domestic abuse Act, which was signed into law in 2005. The statute removes the offence of
raping a spouse from the purview of Section 375 entirely. According to the statute, in the event
of marital rape, a woman has the legal right to seek divorce from her husband and can do so by
going to court. Because of this, a crime that not only causes bodily harm but also undermines
faith in the sacred institution of marriage is being reduced to an act of physical aggression. It
cannot be allowed that the legislature and the court will gloss over the seriousness of the crime.
These regulations are based on the fundamental idea that when a woman consents to being a
part of a marriage, she also consents to every sexual intercourse that may follow after that.
Therefore, does this imply that giving one's assent to engage in sexual activity with another
person even once constitutes that person's perpetual consent? Is having a spouse a green light to
commit rape?

A concern that continues to be raised in relation to the issue of rape in the context of marriage
is how a woman is expected to protect her right to life and freedom when the law does not
permit her to protect her right to her body within the context of marriage. It was in the case of
Francis Coraille Muin v. Union territory of Delhi19 that the concept of a woman's right to life
was brought to light under Article 21. Marital rape is a blatant violation of a woman's right to
live with human dignity.18 It was also in this case that the Right to life was underlined. In this
particular case, it was decided that Article 21 also includes the right to live with human dignity
along with everything else that comes along with it. In a multiplicity of cases, the Supreme
Court has reached the conclusion that rape is a kind of abuse and violates the victim's right to
live with human dignity. However, if a woman is married and her spouse is the one who
perpetrated the act of rape, the court does not appear to give any consideration to the human
dignity of the woman. In judgements such as Bodhisattwa Gautam v. Subhra Chakraborty20,
the court determined that rape is not only a sexual offence, but also an act of animosity towards
the victim. As a result, the marital rape exception was in violation of the right of a spouse to
live with human dignity and gave a husband the authority to engage in a sexual intercourse
against his wife's will as a matter of right.

(A) Failure to Recognise Victims of Sexual Assault in Marriage: A Constitutional Breach

Marital rape not only violates the right to live with human dignity but also flagrantly exploits
the right to have one's own bodily autonomy. Even though this particular right is not mentioned
directly in the Constitution, it is nonetheless protected within Article 21's broader umbrella. The
concept of this right is predicated on the assumption that an individual should have primary
control over decisions that primarily affect his or her body or prosperity. This right applies to
the most personal of concerns, such as one's ability to manage their own body. In the case State
of Maharashtra v. Madhukar Narayan Mandikar21, the Supreme Court of India acknowledged
the reality that an individual maintains control over his or her own body. It is unfortunate,
however, that the court has not yet included spouses in the scope of this ambit. It is
unacceptable for a husband to violate his wife's bodily integrity in the name of the marriage, but
it is acceptable for a stranger to abuse a woman's body in the name of rape or prostitution. The
judicial system must realise that the act of raping a victim does not become null and void just
because the victim is married to the perpetrator of the act.

JS Verma Committee report stood in congruence to this idea and recommended that Marital
Rape as an exception should be removed and marriage should not be considered as a
prolonging act of irrevocable consent.22Therefore, in a case of whether a sexual activity
happened with or without consent, should not consider the relationship between people as an
excuse. Despite this, the recommendations regarding rape within marriage were never accepted
nor worked upon.

RIT foundation and All India Democratic Women's Association brought up this matter again in
a petition that they sent to the government. It was argued by the NGO men welfare trust that in
order to establish the crime of rape, there needs to be proof that force was used. The Hon'ble
High Court of Delhi gave careful consideration to this case and heard it in great detail. The
court made the observation that the use of force is not an essential prerequisite for the
commission of rape.23 The court also came to the conclusion that marriage does not confer the
right to engage in sexual activity and cannot be considered equivalent to permission for all and
all forms of physical interaction.

Article 14 of the Constitution ensures the fundamental right that "the State shall not deny to any
person equality before the law or the equal protection of the laws within the territory of India."
Article 14 protects an individual from being discriminated against by the state because it states
that the state "shall not deny to any person equality before the law or the equal protection of the
laws within the territory of India." When it comes to protection from rape, however, the
exception that may be found in Section 375 of the Indian Penal Code from 1860 is
discriminatory towards a wife. As a result, it is possible to draw the conclusion that the
exemption that is given for in Section 375 of the Indian Penal Code, 1860 does not constitute a
reasonable classification, and as a result, it is in violation of the protection that is promised in
Article 14 of the Constitution. Every citizen has the responsibility, as stated in the Constitution,
"to renounce practises derogatory to the dignity of a woman"25; yet, it would appear that
domestic violence and marital rape do not fall under the definition of the term "dignity."

"non recognition of marital rape in India, a nation set upon the bedrock of equality, is gross
double standard and hypocrisy in law which is central to the subordination and subjugation of
women," the additional sessions judge Kamini Lau stated while hearing a case against a man
who was accused of forcing his wife to participate in unnatural sex. 26

It is high time for India, a country that is famed for its values and morality, to take a stand
against the immoral and illegal treatment that is provided to women. The laws that are founded
on beliefs that no longer hold any reference to today's society and therefore need to be
eliminated.

III. GENDER NEUTRALITY IN RAPE LAWS IS AN IMMEDIATE REQUIREMENT

Lack of gender neutrality is another limitation that makes the Indian criminal justice system
ineffective in rape laws. According to Black's Law Dictionary, the word 'Neutral' means
'indifferent; impartial; not engaged on either side.' 27 Therefore, gender-neutrality refers to the
fair and unbiased treatment of men and women. This article emphasises on the concept of
gender-neutrality as an idea that the legislature and the judiciary should avoid distinguishing
roles accordance with gender.

In India, rape is recognised as a crime that can only be committed by a man against a woman.
This means that a perpetrator is always a man and a victim is always a woman. Although it is
acknowledged that this definition of rape has been built based on the experience of the society
over a period of time, there is a need for change in the particular law due to the change in the
dynamics of the society today. The definition given in Section 375 of the Indian Penal Code

In its 172nd report, the law commission recommended that the law be amended to broaden the
definition of rape. The Commission had previously recommended that rape be substituted by
sexual assault as an offence. Such assault included the use of any object for penetration. It also
acknowledged that there had been an increase in the number of sexual assaults committed
against boys.29

The requested amendments were aimed at broadening the definition of sexual assault so as to
cover incidents that did not involve penile-vaginal penetration.

The Ministry of Home Affairs released a draught of the Criminal Laws Amendment Bill in
2010 that attempted to redefine rape. The draught provisions substitute the offence of rape with
"sexual assault." Sexual assault is defined as the penetration of the vagina, the anus or urethra
or mouth of any woman, by a man, with (i) any part of his body; or (ii) any object manipulated
by such man under the following circumstances: (a) against the will of the woman; (b

These prejudices and the lack of legal recognition force the victims to live in silence. Many
victims in the past have turned to social media to bring to light their experiences. One of the
most glaring examples is the incident of Vinodhan, a boy from Chennai who shared in Gang
rape incident at an age of 18 years.33 Another such incident was in September 2014, where a
Mumbai-based transgender was raped and video graphed by three police officials at Ajmer
Darghah Police Station

(A) Erection and Informed Consent Implied

People have the misconception that a man cannot have an erection while being sexually
assaulted by another person. This misconception has led to the myth that if a man has a
physiological response to a sexual intercourse, that is a sign of his consent, and it is mistakenly
taken to mean that he was enjoying it. This myth was debunked in the case of R v. R.J.S.36, in
which a Canadian court held that when a male victim maintains

This judgement was heavily criticised for interpreting an erection as prima facie evidence of
consent. The very idea of considering an erection as a sole response of arousal is completely
flawed. Such ideology upholds the stereotype that'men always want sex'. In response to this
misinterpretation, it has been argued that many times victims ejaculate out of anxiety or in
order to put an end to the assault by making the offender believe that it is over. This is

i. A response like this one could be a manifestation of what's known as a "generalised body
reaction to an emotional turmoil."
ii. Such responses may have biological roots, which is to say that while sexual responses are
influenced by the brain, they are mediated through the spinal cord and function independently.
As a result, a sexual response that is determined by spinal cord discharge without control is
possible when one is "paralysed with fear."

iii. Response may be a natural reaction to the victim's concern, or it may be a reflection of some
other previous role in the victim's subconscious.

This proposition demonstrates that a physiological response of the victim is not a proof of
consent or enjoyment against the sexual act. This proposition explains how the stereotype
that'men always want sex' is flawed and disrespectful to the plight of a victim, and how it
overlooks a victim's agony on the basis of sex.

People believe that a woman can never commit rape against a man because of reasons such as
physical force and stereotypical outlook towards men. However, in a survey carried out by
Centre for civil society, they interviewed 222 men, out of which 16.1% reported that they had
been coerced or forced into sex as an adult by a woman. This is another factor that needs to be
studied in the case of rape. Gender neutrality in the context of the perpetrator has been the most
contentious issue

1. "Men cannot be raped by women because it is physically impossible."

However, India no longer recognises rape with the same definition. Now it also includes
insertion of foreign objects, oral and anal penetration as well.41 This means that a woman can
be said to rape a man. The second argument that people make against gender neutrality is that
even if penile-vaginal penetration is kept as a requisite, erection cannot be considered as
arousal or consent. This argument is based on various studies that have shown that erections

2. "There have been no cases of females committing rapes against males."

There have been reports of males being raped by women, but Kavita Krishnan thinks that this is
not a significant issue in our society.43 This is an argument that is riddled with errors.

Although I agree that in male rape, majority offenders are men, however, there are instances of
women perpetrators which cannot be ignored. There have been surveys that have substantiated
the same.44 Although I agree that in male rape, majority offenders are men, however, there are
instances of women perpetrators which cannot be ignored. In 2015, Lara Stemple, Director of
UCLA's Health and Human Rights Law Project, came across a statistic that surprised her: in
incidents of sexual violence reported to the

(B) "Gender-Neutrality in Rape Law is Anti-Women"

It is well known that male rape is way less in occurrence as compared to female rape, however,
it is not non-existent. For example, while the rate of rape in women is 1 in every 5 women, the
rate in men is 1 in every 71 men.47 It is understood that rape has been a crime committed
against women at an unacceptable rate, and as a result, women have faced stigma, fear, and
have lived in secrecy as a result of the crime

Introducing gender neutrality is not motivated by the desire to undermine the feminist
movement; rather, it is motivated by the desire to protect the fundamental rights of men as well.
Since article 14 enshrines the Right to equality and article 15 prohibits discrimination on the
grounds of sex, men ought to be entitled to the same rights as women and ought to be provided
legal recourse against rape.

Due to the lack of legal recognition, there has been no official or documented research on male
or transgender rape. However, the National Crime Record Bureau (NCRB) has tabulated some
statistics related to crimes against men under various categories such as kidnapping and
abduction for a variety of purposes such as prostitution, illicit intercourse, slavery, and so on.

Therefore, it is high time that we address the problem of male rape. There are consequences
that male victims have been facing due to the lack of legal recognition. If a man is raped,
especially by a woman, he is not considered as a'real man.' This not only stigmatises a man's
life but also encourages patriarchy both in a man and a woman's wife. Male rape also brings to
light the fact that patriarchy is not

The question of whether a woman can be charged for a woman's rape was first raised in Priya
Patel v. State of M.P.49 It was a case where a woman was gang raped and the gang in question
included a woman. The language of section 376(2)(g) is "whoever" commits gang-rape; thus,
there is no specific perpetrator mentions, making it difficult to prosecute. However, it is
essential to talk about gender

In spite of this explanation, the court decided that a woman cannot have the intention to rape
another woman and that it is inconceivable that a woman could rape another woman.51 The
reasoning given by the court is flawed as the section completely talks about the 'common
intention'. When the High court stated that a woman's modesty can be outraged by another
woman, then why cannot a woman rape another woman?

In addition, the need for gender-neutral rape laws has become an urgent affair after the section
377 verdict given by the Supreme Court, which decriminalised consensual same-sex relations.
Including a male on male rape as an offence under 'unnatural sex' could have been called
justified until the same-sex relations were criminalised; however, as the Supreme Court has
now recognised these relations, it has become all the more pertinent to address these relations in
the same way as we.

FINDINGS

The numerous realities of sexual assault, including rape, committed against women in the
current scenario were brought to my attention. A terrible institution like rape serves men's
interests by helping them maintain their hegemonic position as the superior gender to
women. Beating, beating, molesting, abusing, and other forms of violence against women
are important tactics that are used to maintain a condition of terror and submission in
women in order to have an easier time exercising control over them. Being muscularly
powerful gives males a sense of superiority, which leads them to believe that they can
dominate society according to their own free will and coerce women into giving them any
and all kinds of favours, including sexual ones. This gives rise to a superiority complex in
men. As a result, a significant imbalance emerges, which results in a split between the
sexes, with one gender playing the role of the aggressor and the other playing that of the
victim.

I also discovered that the government and other social agencies are attempting to
participate in controlling the frequent occurrence all across the world; however, the graph
of sexual violence, rape to be precise, is still climbing in India. Despite these efforts, the
frequency of sexual violence, rape to be specific, is still increasing in India. In India, there
has been an ongoing problem with rapes committed against women who are impoverished,
belong to a lower caste, are tribal, or are working independently.

It has been discovered that there are several inconsistencies in the lawmaking process, and
it is obvious that the number of rapes that take place has continued to increase at an
alarming rate as a result of this. The fact that there is a great deal of work that needs to be
done in this area and that there is an immediate need to locate some effective solutions to
assist women and protect them from the adverse effects is a significant factor.

SUGGESTIONS AND RECOMMENDATIONS IN THE THIRD PART

(A) Reexamine the Concept of Consent Within the Context of Marriage

Given that we have explored how the marital rape exemption is founded on the view that
permission to marry is agreement to participate in sexual intercourse, we urge the courts to
address and reevaluate this definition. Specifically, we demand that they take into account
the implications of the assumption that consent to marry is consent to engage in sexual
intercourse. In the same way that obtaining fresh consent before to each sexual encounter
is necessary for sexual encounters that take place outside of marriage, the criteria for
obtaining consent within marriage should be the same as those used outside of marriage.
This move will not only offer women the right to make decisions regarding their own
marriages, but it will also restore their dignity and provide them a sense of safety within
their partnerships.

(B) Alter Your Perspective While Listening to a Case of Rape

The judgement that was made in Karnel vs. State of Madhya Pradesh53, which said that
rape is a crime, should be applied in the courts.

Even in the case of victims of marital rape, the victim's testimony should not be viewed
with suspicion, and she should not be considered a collaborator in the crime. As was
previously said, the difficulty in providing evidence of a rape that occurred within the
context of a marriage is seen as a barrier to the acceptance of marital rape as a criminal
offence. This shift in perspective will make it easier to hear about incidents involving rape
within marriages. It is appropriate that the accused partner bear the burden of proof in
situations of marital rape, just as it is in other types of rape proceedings.

(C) The Urgent Need for Societal and Cultural Shifts

1. Patriarchy

Not only do we need to make changes to our legal system in order to get rid of issues such
as the marital rape exemption and sex-specific rape legislation, but we also need to make
adjustments to our social structure. The patriarchal structure of Indian society dates back
centuries. And because of patriarchy, not only have women been reduced to the status of
chattels and subordinates of men, but toxic masculinity has also been enslaved among the
ranks of men. Getting away of patriarchy as a society will not only grant women the right
to be recognised as equals, but it will also eliminate crimes such as rape and domestic
violence, and it will allow women to live a life in which they are not judged or fearful of
the future. In addition, it will give males the opportunity to live a life in which they are not
required to conform to the definition of social biases.

It is a system similar to patriarchy that has reduced women to the status of chattel in their
marriages, which has led to legal loopholes such as the marital rape exception. In addition
to this, the social system has perpetuated harmful assumptions about males, such as "men
cannot be physically raped" and "men always want sex," which have shut the door on male
rape victims. It is now time for the judicial system to stop basing its decisions on the
beliefs of the general public.

2. Changes to the Educational System

It is not enough to just make changes to the laws or bureaucracy of a society; the people
themselves need to be transformed as well. Children should start learning about gender
sensitization at a very young age and should be conditioned in such a way that they do not
discriminate someone on the basis of sex. This involves recognising the differences
between the sexes but not using them as a premise to exploit any of them. It is vital that
children learn about gender sensitization and should be conditioned in such a way that they
do not discriminate someone on the basis of sex.

(C) Educating All Members of the Legal System on the Importance of Gender Sensitivity

In addition to revising the definition of what constitutes a violation of the law on rape, we
need to educate the entire judicial system so that it is better equipped to deal with the India
of today. It is essential to guarantee that the police, who are typically the first authority in
the legal system to which victims turn for help, are properly educated before proceeding.
On the other hand, because instances of police indifference are so common, it discourages
victims from coming forward with their experiences.

The Stern Review was established in the United Kingdom (UK) in order to investigate a
number of concerns regarding the country's current criminal justice system.54 The
response of public authorities to reports of rape, as well as proposals to support those who
have been victimised, were among the most pressing concerns that were discussed.
According to the report, the police officials' attitudes have changed, but the investigation
also demonstrated that the implementation of these changes into their legal obligations has
not been successful. It is essential that the system of justice not be centred on the method,
but rather on its goal, because in the rush to adhere to the system, the victim is overlooked.
The terrible reality that male rape victims seeking treatment have been turned away from
rape crisis centres has been further supported by additional research. This is due to the fact
that there are no systematic measures in place, despite the fact that these centres are
publicly financed by the Ministry of Justice in the United Kingdom.55

A case such as the rape of Bhanwari Devi in India has shed light on the cavalier and
callous actions of the police force there. In the case of Bhanwari devi, the insensitivity with
which this problem was handled is demonstrated by the fact that the police demanded the
submission of the skirt that she was wearing while also failing to provide her with
replacement attire. In addition to this, the vaginal swab was collected after more than forty-
eight hours, when the criteria for this action is that it be completed within twenty-four
hours.56

In light of the fact that judicial officers typically lead very secluded lives, it is essential to
sensitise them in order to prevent them from developing restricted perspectives. During the
investigation into the rape of Bhanwari Devi, there was an ugly event in which people
projected their narrow ideas. During the process of dismissing the case, the Judicial Officer
of the trial court made some observations for the purpose of acquitting the accused, which
would make the predicament of a rape victim even more difficult. The head of a village is
not allowed to rape, men of different castes are not allowed to take part in gang rape, a man
from a higher caste is not allowed to rape a woman from a lower caste for reasons of
purity, and Bhanwari Devi's husband could not have quietly watched his wife being gang-
raped, among other such ridiculous reasons that were given to justify the acquittal of the
accused.

Incidents of this shameful nature demonstrate how reclusiveness not only impairs the
mental outlook of a judicial official but also makes those seeking justice vulnerable to
behaviours that are irrational. In order to make our legal justice system open and sensitive,
it is essential that our legal machinery be well aware of gender sensitization and begin
practising it. This will allow us to make our legal justice system open and sensitive.

IV. CONCLUSION

This project provides an analysis of the necessary adjustments that should be made to rape
legislation for Minors. Following the conversation that took place above, we have
attempted to stress the need of making it a crime to commit rape within a marriage in order
to address the problems that are experienced by victims within marriages. Courts and even
the Law Commission have often examined the need to criminalise marital rape and the
risks associated with failing to do so, as well as the potential benefits of doing so. It is far
past due for the legislature to take action in response to the suggestions made by the Law
panel in its 172nd report. The concept that a wife is her husband's chattel is the foundation
for the exemption that is provided for rape that occurs within a marriage. This view
contributes to the perpetuation of the inequality that is caused by the patriarchal system.
Marriage is seen as more of a partnership or a relationship between two equals in today's
society. Therefore, it is necessary for both partners in a marriage to have an equal say in all
of the decisions that are made. In addition, the idea of consent ought to be maintained as a
central tenet within the context of a marital relationship, and the notion that agreement to
marry is also consent to a sexual relationship ought to be called into question.

The elimination of the marital rape exemption will give women a way to get relief from the
anguish they are experiencing, and the legal acknowledgement of the issue will further
educate the populace about the scope of the problem by reducing the likelihood that
victims will fail to report it.

Another topic that has been brought up is the necessity of maintaining gender neutrality in
rape laws. Despite the fact that the incidence of male rape is far lower than that of female
rape, the problem of male rape still needs to be acknowledged by the law. This is true
despite the fact that the incidence of female rape is vastly higher. The patriarchal beliefs
that "men cannot be physically forced" or "men always want sex" have placed a stigma to
many of the victims who have been affected by this type of crime. Not only has patriarchy
led to the subjugation of women, but it has also compelled men to conform to the social
norms that it has established.

As a result of the toxic masculinity that was imposed on them, many men have chosen to
remain silent. Violent offenders must be held accountable for the crime of rape, which is
carried out against defenceless victims (whether male or female) and leaves an indelible
stain on the victims' lives. The courts are required to take into consideration the reality that
a woman can rape a man and a man can be raped, which has been called into question in a
few cases. According to the authors, the lack of gender neutrality in the law denies the
existence of crimes that are being committed and deprives victims of any legal redress; as a
result, there is an immediate need for gender neutrality in the law.

CHAPTER – 3

INCREASING RAPE ON MINORS AND PSYCHOLOGY OF RAPISTS

It has been observed that the number of incidents of rape on kids has been increasing over
the past few years, as well as the overall number of cases of rape in India, which continues
to rise each year. This article focuses on the study of the cases of rape on minor girls in the
country and aims to understand the mentality of criminals who commit rape on minors.
The cases of rape on minor girls are studied throughout the essay.

As a result of the fact that not all of those who commit the crime of rape have the same
psychological make-up and that they do not all have the same motivations for committing
the crime against a young woman, one of the challenges that arises is trying to comprehend
the various psychological make-ups of those who do the crime. When it comes to
punishing and rehabilitating an offender, it is necessary to first have an understanding of
the offender's mental state so that an appropriate punitive, therapeutic, or preventive
approach can be taken.
In India, rape is the fourth most common type of crime committed against women. It is
believed that roughly 35 percent of women in every region of the world have, at some
point in their lives, been the target of sexual harassment of some kind. Less than forty
percent of women who have been the victims of sexual violence seek assistance, according
to the majority of countries that have data on rape available for study.

Fewer than 10 percent go to the authorities for assistance. It is difficult to accurately

quantify the number of women who have been raped due to the fact that many of those
who have been raped do not report their experiences or speak out about them.

According to the most recent data that was collected by the NCRB, there were over 1.75
lakh cases of rape reported in the country between the years of 2014 and 2018. The state of
Madhya Pradesh registered the greatest number of cases over this entire time period. In
recent years, there has been an increase in the number of people who are prepared to report
rape as a result of multiple instances of rape receiving broad media exposure and triggering
public outcry. As a result, the Government of India revised its penal code to include new
provisions for the offences of rape and sexual assault.
This brand new act The Protection of Children from Sexual Offences Act, 2012 was passed
in India in order to protect the rights of children. The new Act[i] provides for a number of
offences that fall under the category of which an accused person can be penalised. A
individual who is younger than 18 years old is considered a child according to the statute.
It takes into account only the child's biological age, ignoring the factors that go into
determining the child's mental age. The new law not only criminalises acts of immodesty
committed against children, but it also recognises and criminalises forms of penetration
other than penile-vaginal penetration.

The behaviour in question is gender-blind. When it comes to pornography, the Act makes
it illegal to either watch or collect pornographic content that features children. This
includes watching it or collecting it. The Act makes it a criminal to aid or abet the sexual
abuse of a minor. In addition to this, it provides for a variety of procedural improvements,
which will make the arduous process of having a trial in India significantly easier for
children. The Act has been criticised due to the fact that its provisions appear to
criminalise consensual sexual intercourse between two people younger than 18 years old.

Abuse of Children & Young People

The majority of sexually violent offenders are men, and the majority of their victims are
women. As a result, rape is a highly gendered form of violence, and the majority of its
victims are women. The most prevalent type of violence committed against women is rape,
which has always been ingrained in human civilization. It is a serious breach of a woman's
bodily integrity and can even be considered a form of torture.

While the United Nations continues to advocate democracy as the ideal system to preserve
the dignity and rights of women, India, the largest democracy in the world, fails to protect
the women of its nation. This article focuses mostly on the victims of rape who are under
the age of 18 and how elements of criminal psychology play a significant part in the
commission of this crime.There are a number of different ways to address the issue of how
someone should be punished for an offence that they have committed.
Following the commission of a criminal act, one of three possible sorts of replies may
occur:
The conventional response of nature as a whole, often known as the punitive method. It
views the offender as a famously dangerous person who needs to be subjected to severe
punishment in order to protect society from the harm that he causes via his criminal
activities.
The therapeutic approach is the other method that can be taken. The offender is seen as a
sick individual who needs treatment under this theory. For the purpose of rehabilitating the
offender, the appropriate treatment as well as the appropriate punishment should be
administered.
The third strategy is known as the preventative approach, and its goal is to eradicate from
society the factors that were found to be responsible for the onset of criminal behaviour.

Several Cases of Sexual Assault Committed Against Young Girls in India

The Mathura Rape Case in the state of Maharashtra, in which a teenage Adivasi girl was
kidnapped by several policemen and in which the convicted were acquitted by the Supreme
Court creating an uproar on a national scale and through which the feminist groups
themselves were able to come together across the country for the first time, was the
catalyst that set everything in motion.

Justice Anand's landmark ruling from January 11, 1994, which upheld the death penalty for
a security guard who had raped and murdered a schoolgirl in a Kolkata flat in 1990, stated
that the severity of the punishment must be proportional to the heinousness of the crime,
the actions of the perpetrator, and the helplessness of the victim. When it comes to minors
who have not yet entered into a marriage, there is no solution, and no amount of
punishment can compare to the anguish they have endured. There are a number of different
ways to address the issue of how someone should be punished for an offence that they
have committed.
Following the commission of a criminal act, one of three possible sorts of replies may
occur:
The conventional response of nature as a whole, often known as the punitive method. It
views the offender as a famously dangerous person who needs to be subjected to severe
punishment in order to protect society from the harm that he causes via his criminal
activities.

The therapeutic approach is the other method that can be taken. The offender is seen as a
sick individual who needs treatment under this theory. For the purpose of rehabilitating the
offender, the appropriate treatment as well as the appropriate punishment should be
administered.
The third strategy is known as the preventative approach, and its goal is to eradicate from
society the factors that were found to be responsible for the onset of criminal behaviour.

Several Cases of Sexual Assault Committed Against Young Girls in India

The Mathura Rape Case in the state of Maharashtra, in which a teenage Adivasi girl was
kidnapped by several policemen and in which the convicted were acquitted by the Supreme
Court creating an uproar on a national scale and through which the feminist groups
themselves were able to come together across the country for the first time, was the
catalyst that set everything in motion.

Justice Anand's landmark ruling from January 11, 1994, which upheld the death penalty for
a security guard who had raped and murdered a schoolgirl in a Kolkata flat in 1990, stated
that the severity of the punishment must be proportional to the heinousness of the crime,
the actions of the perpetrator, and the helplessness of the victim. When it comes to minors
who have not yet entered into a marriage, there is no solution, and no amount of
punishment can compare to the anguish they have endured.

A man who lived nearby and was 40 years old raped a baby girl who was 21 months old
and was from her neighbourhood in the Gandhi Nagar district of Delhi on May 10, 2017.
The girl's father was familiar with the man who frequently allowed him to play with his
infant daughter. On this particular day, however, the man discovered the infant alone and
proceeded to sexually assault her for several hours until her father returned home. The
infant was transported to a hospital in the area, where the attending physicians reported
that she was in a severe condition. In a separate incident that took place on May 10, 2017,
in the city of Varanasi, a guy aged 24 sexually assaulted a deaf and mute girl who was just
five years old.

The 'Kathua Rape Case' (2018) involves an incident in which an eight-year-old girl was
raped by eight different males while they were all present in a temple in Kathua. She was
allegedly held captive for several days inside the temple before being raped, and it appears
that this was done as part of an effort to push the surviving members of the community out
of the area.

Another instance, known as the Jind Rape instance (2018), involved the discovery of the
body of a missing 15-year-old girl from Jind, Haryana, in the nearby village of Jhansa. She
had been missing for three days prior to the discovery of her body. According to the
medical findings, she was subjected to a vicious gangraping attack in the beginning of
January, during which her private parts were mutilated.

An additional horrifying case of rape of a child occurred in the state of Haryana in the city
of Panipat. In this case, an 11-year-old girl was raped and murdered by two of her
neighbours, who then apparently engaged in necrophilia once they had completed their
murderous act.

An alleged sexual assault took place on a baby girl who was only five months old on the
evening of February 16, 2020. The claimed perpetrator was the baby girl's cousin brother.
The infant was discovered late on Sunday night and rushed to the hospital, but
unfortunately she passed away while being treated there.
On the evening of April 24, 2020, a girl who was 14 years old was allegedly raped by three
young people, one of whom was a male who was 16 years old. The perpetrators allegedly
led her to a school building in a village close to her house in the Jind region of Haryana
and took her there. According to the authorities, the youngster knew the girl and used some
ruse to get her to meet with him. Against the accused person, a rape charge was brought up
in accordance with the pertinent sections of the Protection of Children from Sexual
Offences (POCSO) Act. The primary suspect, a little boy, has been taken into custody, and
other inquiries are still under way.

When the victim, who was just 8 years old at the time, went to her neighbourhood on June
9th, 2020, to ask for food, six adults viciously raped and sexually assaulted her. The police
have apprehended all six suspects, two of them were minors at the time of their arrest.
Among the other suspects are a man aged 75 years old, a man aged 68 years old, a man
aged 53 years old, and a man aged 52 years old. POCSO is also aware of the situation and
has opened an investigation.

The Mentality of Sexual Offenders

The act of raping another human being is a heinous crime, and the effects of rape not only
manifest themselves physically but also manifest themselves psychologically in the victim.
The crime of rape can be committed for a variety of reasons, including but not limited to
feelings of lust, hatred, rage, or desire for revenge.

However, what is the mental state of the individual who commits the act of rape,
particularly when it is committed on younger victims? In her piece, the author Yashasvi
Kone makes an observation that is spot on: "When we think about the act of sexual
violence against women and what could possibly have gone wrong, we invariably end up
blaming the women and ridiculing them for falling prey to such an act right before being
ostracised." When we think about the act of sexual violence against women and what could
possibly have gone wrong, we invariably end up blaming the women. Women often
wrongly believe there must be something wrong with them since they were raped.

This distorted viewpoint, which is often inflicted on victims, can result in years of
humiliation and, over time, the development of a number of psychiatric diseases, such as
serious depression and, in the most severe cases, personality disorders. The psychological
toll taken on the victim is equivalent whether the rape was committed by a group or by a
single offender, regardless of the context in which it occurred. The level of physical
violence may or may not vary from situation to situation. The intensity of rapes, in addition
to their increasing frequency, is also getting harsher. However, the underlying mental
illness of the rapist is frequently overlooked in all of the animosity and fury that is directed
towards the rapist and the victim for her role in bringing such vengeance upon herself.

One question that has troubled many people is, "What is going through the minds of the
men who impose themselves on unsuspecting women of any age, whether they be young,
old, comatose, or infant?" So, what exactly is it about man that may turn him into a beast?

People have a tendency to blame women for being the victims of rape and hold her
responsible for being responsible for wearing particular kinds of clothes or behaving in a
specific way. This is something that can be seen quite frequently.

The following is a synopsis of the different misconceptions that are widespread in society
in relation to the crime of rape, which were presented by Jaydip Sarkar in his article:
Women cry rape as a means of exacting vengeance on powerful men, women enjoy being
raped, (c) women are only raped by strangers, women can avoid being raped if they really
want to, women ask for sex by the way they dress and behave, rapists are crazy or
psychotic (the word "animals" is often used), and most rapists are different, not like us.
None of the aforementioned are true in a general sense, despite the fact that there is a
possibility that there is some truth in some extremely unusual individual circumstances.
The following are the responses that Marcia Cohen and Sherrie H. McKenna provided to
these myths in their article, which was written in light of the psychology of rape criminals:
The idea that rape is mostly a sexual act is a popular misconception that persists to this
day. People who hold this belief frequently place the victim on trial without intending to
do so. Not only the law enforcement officials, but also her family and friends start to
question her conduct, her attire, and her reasons for doing what she is doing.

It is possible that the woman's reliability will be called into question, and it is also possible
that her sexual activity and private life will be made public. Rape is an extremely
underreported crime, which may be due to the feelings of remorse, embarrassment, and
humiliation that are associated with the act. On the other hand, during the course of the last
20 years, a wide range of psychologists and sociologists have started looking at the
psychological aspects of rape and rapists.

Their investigations have led them to the conclusion that rape is a form of violent crime,
which is frequently perceived by the victim as an attempt on her life, during which she is
preoccupied with feelings of shame and terror. When a man rapes a woman, it is often
fueled by his emotions of violence, hatred, anger, and revenge, among other things. If the
psychology of such rapists committing rape on minors is understood, then efforts can be
made in the right direction to prevent such crimes. Sexual desire is less of a motivation for
the man than violent aggression. [xii] Therefore, when a man rapes a woman, it is often
fuelled by his emotions of violence.

The Different Types of Sexual Offenders

When classifying rapists, it is helpful to think about what motivates them to engage in the
sexually abusive behaviour in the first place. Sometimes it is deliberate, and other times it
may be the result of a brief mistake in judgement. Both scenarios are possible. Sometimes
the criminal act is carried out in order to satiate the need to engage in sexual activity, while
other times the criminal act is motivated by feelings of hostility and physical violence.

In his paper, the writer Jaydip Sarkar examines the classification of rapists as follows,
according to his findings:
There are many different taxonomies that can be employed, but the Massachusetts
Treatment Centre Rapist Typology: Version 3 (MTC:R3) is one of the most
comprehensive, extensively used, and methodologically sound typological systems that has
been developed to this day. It incorporates both theoretical and empirical evidence.

The following is a description of each of the six different types of rapists that can be found
using this model's motivational dimensions:
Offences are unplanned and committed on the spur of the moment, and the offender seeks
immediate sexual fulfilment while employing force only when absolutely required. To a
much greater extent than by individual psychopathology, immediate antecedent events
(situational circumstances) are what drive offences. For instance, a late night, a solitary
female, and the absence of witnesses all contribute to an increase in criminal behaviour.
One example of inadequate impulse control is sexual assault, but there are many others.
�
Anger rapist: His crime is motivated by extreme gratuitous aggressiveness, severe
violence, and a history of previous antisocial offending; as a result, the victim suffers
serious physical harm as a result of the incident.
�
He is driven by concern with sexual thoughts and urges, and this preoccupation is best
described by the diagnostic of paraphilia-not otherwise specified (DSM-IV-TR), which
describes him as a sexual rapist.
�
Sexually nonsadistic rapist: He is driven by sexual fantasies and cravings as well, but the
sexual arousal is inappropriate in nature (for example, a fetish). Additionally, there are
beliefs that encourage the offence, as well as emotions of inadequacy towards masculinity
and sex.
�
Sexually sadistic rapist: This rapist's motivation is not sexual but rather fantasies of
degrading and humiliating as well as having power and control over the victim. The DSM-
IV-TR diagnostic of sexual sadism does the greatest job of capturing this rapist's
motivation.
�
A vindictive rapist is one whose primary motivation is anger; however, in contrast to an
angry rapist, his rage and hostility are directed solely towards female victims. His actions
are designed to embarrass and degrade the people he targets, even though there is little to
no evidence of eroticized aggressiveness and very modest degrees of impulsivity.

Some of these typologies have further subdivisions in terms of the offender's high or low
social competence, as well as whether or not the sadistic behaviour was overt or covert.

The preceding categorization is also applicable to the many categories of criminals who
violate the sexual boundaries of young people. Research on the various subtypes of sexual
predators who prey on children is required in order to gain an understanding of the
motivations behind the commission of this horrific crime and to pave the way for the
development of effective strategies for its prevention.

Disorders Related to Paedophilia

The wicked and cruel psyche of the offender may be to blame for a crime of paedophilia
committed against a juvenile, or the offender may simply have a sick fascination with
young people. The following is how pedophilic condition was described by George R.
Brown, MD, Associate Chairman of Psychiatry at East Tennessee State University and
Professor of Psychiatry at that institution:
Paraphilia can sometimes take the form of paedophilia. It is classified as a condition due to
the fact that it is harmful to other people. Pedophilic disorder is characterised by recurrent
sexually exciting fantasies, desires, or behaviours involving children (often those who are
13 or younger). These fantasies, urges, and behaviours include a child's sexuality. It's
possible for paedophiles to have an interest in young males, young girls, or both.

It is not apparent whether girls or boys are more likely to be the targets of paedophiles;
however, it does appear that girls are far more likely to be the targets of sexual abuse in
general.

The adult is typically someone the child is familiar with and may be a member of the
child's family, a stepparent, or a person in a position of authority (such as a teacher or
coach). Some people only have feelings for members of their own family, which is known
as incest. Some people are only attracted to children, and not just any children but children
within a certain age range or developmental stage. There are some people who are
interested in both youngsters and adults.

A person is said to have paedophilia when they exhibit symptoms such as extreme anguish,
a decreased ability to function properly as a result of their attraction to children, or when
they have acted on their urges to sexually exploit children. The treatment consists of
psychotherapy that lasts for a lengthy period of time as well as medications that change the
sex drive and lower testosterone levels.

An in-depth study of the pedophilic disorder has been made, and the following has been
seen as a result of this research, which can be found in the paper titled "The Neurobiology
and Psychology of Paedophilia: Recent Advances and Challenges."
The frequency with which paedophilia happens is the topic that generates the most interest
among those who seek information on the subject. It is difficult to obtain reliable incidence
numbers of paedophilia as a preference disorder since individuals are often reticent to
disclose pedophilic inclinations, particularly when offences have been committed. This
makes it particularly challenging to collect data on the prevalence of paedophilia.

The incidence of a true pedophilic sexual preference is estimated to be somewhere around

1%, but when general fantasies are taken into account, that prevalence among men in the
general population can reach up to 5%, as extrapolated from the studies presented below.
According to the findings of a number of research (as summarised by Seto, 2009), the
prevalence of paedophilia in the general population could range anywhere from 3% to 5%.
These prevalences can increase from 30% for males with a history of one sexual offence
against children to 61% for men with a history of three or more sexual offences against
children in penile plethysmography investigations of individuals with histories of sexual
offences against children (Blanchard, 2010; Seto, 2009).

The usage of child pornography has also been shown to have substantial links to
paedophilia. According to the findings of a study that was derived from the German
Dunkelfeld Prevention Project, among 345 paedophiles who admitted to having committed
one or more sexual offences against children, 37% of them have only utilised child
pornography, 21% have committed exclusively hands-on sexual encounters with a minor,
and 42% have committed both. [xv] The study was conducted on paedophiles who had
admitted to having perpetrated one or more sexual offences against children.
It is of the utmost importance to determine the mental state of the offender while
committing a crime against a child or adolescent. Only then can the right punishment be
administered, and the offender can be rehabilitated and readmitted to society.

Violent Offenders Who Are Frequently Known to the Victims

The Calcutta High Court conducted research on the NCRB's crime statistics for India and
came to the conclusion that, according to the reports of the National Crime Record Bureau,
more than ninety percent of instances of rape are committed by relatives or other people
the victim knows. The NCRB Crime in India Statistics for 2018 reveal that a staggering
93.9% of all rapes were carried out by individuals who were already known to the victim.

In 2017, the perpetrators of rape were known to the victim in 93% of all cases, compared
to 94.6% of all cases in 2016, when perpetrators were known to the victim in 94.6% of all
cases. In 2016, perpetrators included fathers, brothers, sons, grandfathers, and other known
acquaintances.

It was stated in the study that:

According to the most recent data from the National Crime Records Bureau (NCRB), one
in four of the people who were raped in the United States in 2018 were under the age of
18, and more than half of the victims were between the ages of 18 and 30, the report states.
According to the data, the offenders were known to the victims in almost 94% of the cases,
whether they were family members, friends, live-in partners, employers, or others. [xvii] It
can be seen from the data that in the majority of cases of rape on minors, the offenders are
known to the victim and they are either the victim's parents, family members, neighbours,
or relatives.

In the case of Mohinder Singh vs. State of Punjab[xviii], the accused was found guilty of
committing rape on his underage daughter and received a sentence of 12 years in a
maximum security prison for his crime. The Supreme Court's disapproval was articulated
as follows: "One cannot comprehend to visualise a situation of such nature in which father
himself committed rape on his own minor daughter in the presence of her own mother."
(One cannot comprehend to visualise a situation in which father himself committed rape on
his own minor daughter in the presence of her own mother).

It would be extremely difficult for anyone to lightly brush aside such conduct by stating
that it was committed in a fit of anger or rage or such other similar situation. The
behaviour of the appellant during the commission of the said offence was not only
bordering on immorality of the highest order. It was also extremely close to being
immoral. If such a heinous crime of rape had been done by anybody else, other than the
father himself, the victim would have had every opportunity to cry out for solace to her
mother or father. However, because the crime was committed by the father, she did not
have this option.

One can imagine the pitiful predicament in which the daughter would have found herself
when the perpetrator of such a heinous crime turned out to be the girl's own father, and
when such a despicable conduct was carried out in front of the child's own mother. [xix]
When the girl's mother was present, the scenario would have been much more
heartbreaking.

The case of Laxman Naik vs. State of Orissa [xx] concerns a young girl who was only
seven years old when her own uncle raped and murdered her. The court reached the
conclusion that the accused appeared to have behaved in a savage manner throughout the
proceedings.

After he had satisfied his lust, the accused, in an effort to cover up the evidence of his
crime and to prevent the victim from telling her family and others about the wrong he had
committed against her, put an end to the life of the innocent girl. The court noticed how the
accused had deviously formed his plan and ruthlessly implemented it in such a
premeditated cold-blooded and violent murder of a very delicate age girl after having raped
her. The court also noticed how the accused had brutally carried out his plot.

Regarding the matter of Kamta Tiwari versus the State of M.P. [xxi] The Supreme Court
deliberated on a case involving the rape and subsequent murder of a little girl who was
only 7 years old. According to the evidence, the accused had a close relationship with the
deceased person's late father's family, and the deceased person referred to the accused as
"uncle."

This Court saw the closeness to the accused, and the accused persuaded her to go to the
grocery shop where the girl was later kidnapped by him and subjected to rape before being
strangulated to death and having her body dumped in a well. This Court also noticed the
closeness of the accused to the victim, and the accused is now on trial for her murder.

In the court case known as Shivaji @ Dadya Shankar Alhat v. The State of
Maharashtra[xxii], the culprit was a married man with three children. He was known to the
family of the deceased 9-year-old victim, and he raped and murdered her.

In the specific instance of Mohd. A young girl of seven years old was kidnapped, sexually
assaulted, and ultimately killed in the case of Mannan @ Abdul Mannan v. State of
Bihar[xxiii]. The court took note of the accused person's ability to gain the trust of the
victim, who was a young girl, as well as the terrible method in which the victim was first
forced to rape and then strangled to death. The accused person was between 42 and 43
years old. A girl of 10 years old was raped by her neighbour while they were both outside
playing in the case of Haresh Mohandas Rajput v. State of Maharashtra [xxiv].

In the case of Amit vs. State of Uttar Pradesh[xxv], the accused, who was a neighbour of
the victim and was 28 years old, kidnapped the victim, who was just three years old, under
the guise that he was going to offer her some biscuits. He subsequently raped and
murdered the child after taking her. The examples given above are only a few of the
various situations in which a family member, someone else with a close relationship to the
family, or another someone who has earned the victim's trust can molest a young girl who
is underage.

In the case of Saji @ Piyoos versus State Of Kerala[xxvi], the High Court of Kerala
maintained the conviction of the two accused individuals who were the victim's parents for
the crime that they were accused of committing. The father of the victim, who is the first
accused, allegedly had sexual relations with the victim, who was then 13 years old, for a
period of one year, with the goal of committing rape on his own underage daughter. As a
result, the victim became pregnant and gave birth to a son. The accused woman did not
care for the victim's newborn child after the delivery.

The High Court of Kerala made the following observation regarding this case: "In this
instance, the father did not spare his daughter and ravaged her body and soul in order to
satisfy his lust for sex." There is no question that he should serve the maximum possible
sentence that the law allows.

In the case Moosa Kunnugothi vs. The Administrator[xxvii], the High Court of Kerala
denied the accused individual's request for bail. This individual possesses a significant
amount of wealth and exerts a significant amount of power. It is alleged that he obtained a
girl from a disadvantaged background who was nine years old and subjected her to rape
and unnatural sexual assault with the active aid and assistance of his wife, who is the
second accused in this case. The youngster came from a home of poverty.
It is further alleged that the petitioner videotaped himself engaging in deviant and immoral
behaviour, and that recording was then shared both online and offline by the petitioner.
This allegation is made in the second count of the petition. During the course of the
investigation, under the provisions of section 164 of the Criminal Procedure Code, the
second accused person gave a statement. was recorded, she is believed to have divulged
information regarding another episode of horrific sexual molestation by the petitioner of
still another underage girl, who was younger than 13 years old at the time. The case is
currently being tried in court.

In the case of Dhari Kumar Jamatia vs. State of Tripura[xxviii], the Tripura High Court
confirmed the conviction of three accused individuals who were responsible for forcibly
taking the victim away to a nearby rubber garden where she was gang raped by them.

The victim was familiar with the accused individuals. In this particular instance, the age of
the victim (whether she was a juvenile) on the day of the occurrence as well as the amount
of time that had passed since the FIR was filed were being investigated. The victim's
school certificate was presented in court as evidence in order to determine her age, and the
judge ruled that the victim was a minor at the time of the incident after accepting the
certificate as proof.

Regarding the delay in filing the FIR, the court made the following observations:
When it comes to situations of rape, our well-reasoned opinion is that it is rather unreal to
try to find an explanation for every second's worth of delay in reporting the crime to the
authorities. When something as heinous as this is done to a woman, not only the victim but
also her entire family goes through a traumatic experience, and it takes some time for them
to be able to return to their normal lives and focus about other things.

What we need to determine is whether the passage of time or delay, in light of the facts and
circumstances that have been presented, provides a reasonable inference that the time was
used for the purpose of concocting and falsely implying anything. Following an
examination of the case's particulars, the court came to the conclusion that the initial
charging document had been submitted without undue delay, and that the accused had been
correctly found guilty.

Rapists target minor girls, preferably those they already know, because it is easier for them
to gain access to those minor girls, those minor girls place their trust in the people they
know, and their families are less likely to question or question whether it is safe for the
minor girl to be alone with a person who is known to them. Additionally, minor girls are
less likely to resist or less likely to resist as forcefully as a major would, minor girls are
less likely to realise that they have been raped, and it is The criminal's thought process
behind raping a young girl is likely motivated by the belief that he will be less likely to be
caught if he is able to exert his dominance over the victim with less effort.

We conducted interviews with a few individuals who are working or have worked closely
with the topic of rape and rape criminals in order to get a practical grasp of rape and the
psychology of criminals. Our goal was to gain a better understanding of both of these
topics.
Mr. Abhimanyu Rai, Police Sub-inspector, Vastrapur Police (Ahmedabad, Gujarat)
When asked about the accused who rape young girls, Mr. Abhimanyu Rai said that the age
range of those accused of committing rape on minors is most commonly between 17 and
24 years old. This information was given in response to a question concerning the accused.

The girls who are older than 12 years old and who are victims of rape are typically
involved in a romantic relationship with the accused, and they also have a physical
relationship with the accused. When the family of the girl discovers about their
relationship, they blame the accused of having caused rape on the girl, even though the
girl's physical relationship with the accused was consensual. The act of raping a child by
an adult who is not the victim's parent or guardian is extremely unusual.

In addition, there have been instances in which false FIRs have been filed, and there have
also been instances in which the media has reported a case of rape solely on the basis of a
FIR, even before the investigation has been finished, before a medical report has been
received, and even before the rape has been established. According to his point of view,
the number of instances of rape is far lower compared to the number of instances of sexual
harassment and sexual assault.
�
Sub-Inspector of Police at the Sola Police Station in Ahmedabad, Gujarat, Mr. D.R.Rathod
According to Mr. D.R. Rathod, the officers who interrogate the rape accused are of the
opinion that the accused who commit rape on youngsters are almost always suffering from
some kind of psychological disease, and they do not have any influence over their own
brains.

He is of the opinion that in cases of victim girls who are between the ages of 16 and 18
years and the accused being an adult male of around 24 years of age, they usually have a
consensual physical relationship, and a complaint of rape is filed only when the family
members of the girl discover about their relationship. Additionally, to maintain their status
in the society and to prevent degradation of their social status, the girl complains the
physical relationship to be non-consensual, thereby amputating the victim status

Regarding the issue of rape committed against children, Mr. Rathod is of the opinion that
the number of rape cases committed against minors is growing for the following reasons:
criminals believe that they can easily influence and frighten small girls, show power to
them, and that such minor victims would resist less in comparison to major victims;
criminals also believe that minor girls are more likely to be victims of rape than major
victims. These young girls would not even be aware of what was going on with them, and
the majority of the time, they would not even inform anyone about what had occurred to
them. Because of this, it is imperative that both young boys and girls receive adequate
sexual education, and parents should instruct their young daughters to report any
inappropriate behaviour involving other girls to their care.
�
Senior Police Inspector Mr. G.S. Siyan, Sola Police (Ahmedabad, Gujarat),
According to Mr. G.S. Siyan, one of the primary causes for the rise in the number of rape
cases in the country is the growing impact of western society. In addition, he is of the
opinion that the media only has access to half of the facts, that they do not always
broadcast the whole truth, and that they will occasionally characterise a case as a rape
when it is actually a case of sexual harassment.

The victim, who is often between the ages of 16 and 18, may have provoked the incident in
many cases; nevertheless, once the case has been filed, the victim frequently denies having
provoked the incident and instead places blame on the accused. These victims abuse the
sexual harassment laws that were created to prevent females from being harassed.
Regarding the issue of rape committed against kids, he is of the opinion that the parents of
a girl child who is a juvenile should take a significant part in protecting their daughter. The
parents of the younger girls need to educate them on the difference between a good touch
and a bad touch.
�
Inspector of Police of the Sola Police Station in Ahmedabad, Gujarat, Mr. D.H. Gadhvi
When asked why there is no deterrent effect of the many laws that punish sexual assault
and sexual harassment on the accused, Mr. D.H. Gadhvi is of the opinion that criminals
have the psychology that even though there is a heavy punishment for the crime of rape,
their lawyers will defend them and acquit them from the charges of rape. This is why there
is no deterrent effect of the many laws that punish sexual assault and sexual harassment.
Having such confidence would give them the ability to accomplish everything they set
their minds to.
�
The Director of the Wajra O' Force Empowerment Foundation is Ms. Ruzan Khambatta.
Ms. Ruzan Khambatta is of the opinion that pornography, the influence of alcohol, and the
susceptibility of little girls are some of the many reasons why there has been an increase in
the number of cases of rape committed against children. This was her response when she
was asked about the causes for the increase in rape committed against minors.

The fact that the minor females are unable to protect themselves makes them a convenient
target. The idea of nuclear families has led to a degradation of traditional family values,
which is the primary factor in the occurrence of rape committed by a family member or
other relative of a young girl. She has also seen that migrant workers are one of the
primary contributors to the problem of sexual assaults committed against children, which
typically take place in rural or urban slum regions.

Because migrant workers typically travel to their jobs alone, they are unable to fulfil their
sexual urges. As a result, they frequently rape young women because they are an easy
target and because they live in close proximity to them, such as at their neighbor's house or
in their community. Ms. Ruzan Khambatta is of the opinion that the accused should be
subjected to severe punishment, and that laws should be made more restrictive in order to
reduce the occurrence of crimes of this nature. She suggests administering electric shock
therapy to cure the perverted minds of those accused of committing the heinous crime of
raping underage girls. This treatment could have a dissuasive impact, leading to a
reduction in the number of cases of rape committed on kids across the country.
�
United World School of Law (Gujarat) Professor Debarati Halder
Prof. Debarati Halder is of the opinion that the perpetrators of rapes committed against
kids are likely to be either juveniles or adults. The perpetrators of rape on children who are
between the ages of 16 and 19 have been exposed to sexual content, and it is up to them to
decide whether or not they will make beneficial use of it in their lives.

Rape and other violent crimes might occur when people are not properly counselled after
being exposed to content that is sexually graphic. She is of the opinion that the law cannot
regulate the behaviour of the people and that all it can do is instill fear in the minds of the
people. Prolonged provocation, a sadistic mentality, the desire to exert social dominance,
and revenge rape are some of the causes that might lead to an aggravated penetrative
sexual assault.

Regarding the topic of social dominance, Professor Debarati Halder stated that in states
such as Rajasthan and Haryana, the practise of social dominance is common. As a
consequence, people of higher caste are more likely to commit rape on women and
underage girls who belong to lower castes. This is especially true in states like Rajasthan
and Haryana. She believes that increasing people's levels of education and knowledge of
social issues can aid in the fight against the crime of rape.
�
United World School of Law (Gujarat) Professor Sonia Shali
When explaining the psychology of criminals, Professor Sonia Shali stated that the term
"psyche" in psychology refers to the brain, and that all actions are carried out at the
command of the brain. This was part of her explanation of the psychology of criminals. It
is possible for an action to be either purposeful or unintentional; nevertheless, any action
carried out by a criminal would be considered intentional because the criminal would have
given some thought to the act before carrying it out. It is argued that the negative cognitive
process that a criminal has constitutes the mens rea of a crime.

According to her, there are a number of factors contributing to the rise in the number of
rape cases, including the influence of peers, nuclear families, poverty, environment, and
money. She is of the opinion that the ages of 12 and 18 are a period of sexual exploration,
and because of this, juvenile boys commit rape on minor females in order to explore their
sexual urges. On the other hand, adult males commit rape on minor females in order to
satiate their lust while under the influence of their perverted and cruel minds.

Violent crimes against children are more prevalent in rural areas, and the offenders are
frequently the victim's own relatives or other individuals she knows. This is mostly due to
a lack of education, a lack of money, a craving for sexual pleasure, easy access to kids, and
the fact that they may be intimidated with ease. Methods such as mapping and
psychometric analysis are performed in order to understand the psychology of offenders
who commit rape on kids. This is done so that it can be determined whether the offender
committed rape due to some kind of psychiatric problem or just because of his perverted
mind.

As can be seen from the perspectives presented above, some of the primary factors that
contribute to the rape of minors are things like pornography, the impact of alcohol, the
vulnerability of minor girls, the lack of resistance displayed by minor girls, poverty,
illiteracy, the influence of one's environment, the influence of peers, nuclear families, and
societal dominance.

CONCLUSION

As stated previously, the three approaches to criminal behaviour are the punitive approach,
the therapeutic approach, and the preventive approach. If we give our opinion on the
execution of a punitive approach, then the courts should consider not only the anguish and
sufferings of the minor victim of rape, but also the offender's psychology and the
circumstances surrounding the crime. In addition, there should be a greater emphasis on
the adoption and implementation of therapeutic and preventive approaches in order to
rehabilitate offenders and prevent the crime of rape against juveniles.

Regarding the therapeutic approach, steps can be taken to determine why an offender
committed a rape against a minor, whether it was due to a psychiatric disorder, personal
enmity, feelings of lust or wrath, or for some other reason. Once the cause of the offence is
identified, appropriate therapeutic treatments can be administered to offenders in order to
facilitate their reformation and rehabilitation.

In case of preventive approach, preventive measures such as educating the minors about
good touch and bad touch; encouraging confidence in minors to inform if any incident of
sexual assault happens with them; creating awareness among people about rape on minors
and the harshness of the punishment for such crimes so as to create deterrent effect among
people; survey should be made as to in which areas, whether rural or urban, the crime of
rape on minors is more prominent and to target the awareness programmes appropriately
towards those areas; to avoid the minors wandering alone in the streets, especially at night
and to always accompany the minor girls when they go out; the parents of the minors
should always keep a check on the behaviour of their neighbours or the relatives towards
their child and if they have any suspicion then they should talk directly to that person
regarding it and should also warn their child and such other measures should be taken to
prevent the crime of rape on minors.

As stated in this article, different offenders have varying motivations for committing the
crime of rape against minors, making it difficult to create laws that are situation-specific.
To effectively implement the law, it would be necessary to consider both the victim's
suffering and the offender's psychology when rendering judgements.

Other measures that can be taken include encouraging the victims to report the rape,
encouraging the perpetrators to undergo psychiatric treatment so that they do not commit
the crime again, and establishing fast-track courts to expeditiously handle cases of rape
against minors. Effective change can be brought about not only by treating rape victims,
but also by treating rapists.
 CHAPTER – 4

Landmark Judgements that shaped the Rape Laws in India

Introduction

Section 375 of the Indian Penal Code talks about rape and what actions a man can be held
liable for if he performs a rape. Previously, it was considered rape if the penis was inserted into
the vagina or anus or mouth of a woman. But now, even if the object is inserted into the vagina
or other parts of the body, it is still considered rape.

The objective of Section 375 of the Indian Penal Code as said by Justice Krishna Iyer in the case
of Rafiq Vs State of U.P. is that a murderer kills the body whereas a rapist kills the soul. So,
rape is considered a more serious crime than murder. This Section of the law aims to punish
those who would deliberately and maliciously rob women of their souls.

Under Section 375 of the Indian Penal Code, a man is considered to have committed rape if:

 There is penetration by a person of the penis to any part of the vagina, mouth, or anus of
women.
 There is an insertion by a person of any object or part of the body that is not being used
by the penis or the vagina.
 There is manipulation done by a person or a group of people into a woman’s body so that
they can sexually penetrate her vagina or any other part of her body.
  There is an application by a man or any other person his mouth to the vagina, anus, or
urethra of women.

Circumstances under which a person shall be held liable for Rape

 First, the act is done against her will. This means that it was done under the reasoning
power of her mind or not.
 Second, it was done without the woman’s consent. This means that she was not able to
express her opinion with either communication in the form of words or gestures.
 Third, consent obtained by putting someone in whom she has an interest, in fear of death
or hurt.
 Fourth, when a woman gives consent thinking that her husband is her husband, the man is
aware that the woman gave consent anyway.
 Fifth, when a woman consents to an act that is not in her control, she may be unable to
understand its true nature and its consequences such as when intoxicated or due to
unsoundness of mind or by administering an unwholesome substance.
 Sixth, with or without consent of a woman who is under the age of 18. Seventh, when the
woman is unable to communicate her consent.

It was also stated that, if a woman is not resisting sexual activity, then it does not mean that
she is giving consent.

There are certain exceptions to this Section such as: i) When it includes some kind of medical
treatment it shall not be constituted to rape. ii) When it involves sexual activity between a
husband and his wife who is no less than 15 years of age.

376 of the Indian Penal Code states that if a person commits rape, then he or she should be
punished with imprisonment for a term which may not be less than seven years or which may be
for life and shall be liable for fine.

“Some of the Landmark Judgements relating to Rape with Minors as well as Majors:

 Mathura Case
Tuka Ram And Anr Vs State of Maharashtra[i]

Facts

In 1972 on March 26th, a minor girl was allegedly raped by two police officials while she was in
police custody. This incident took place in Desai Gunj Police Station in Maharashtra. This case
highlighted various issues in the context of Indian Rape laws, especially the issue of consent and
the burden of proof.

Judgement

The Sessions court held that the defendants were not guilty due to the voluntary consent of the
victim. It was held that Mathura willingly gave her consent to the sexual intercourse as she was
habituated to it. The Sessions judge has ruled that rape and sexual intercourse are different terms
and cannot be used in the same case.

The case was then appealed in the Bombay High Court, which took note of all the findings in the
trial conducted in the sessions court. The High Court has appreciated the observation made by a
Sessions Judge that there’s a difference between rape and sexual intercourse. However, they
forgot to point out that there’s a difference between passive submission and consent. The court
then noted that the consent given to the accused was not voluntary and was made due to the
threat of arrest by the police.

Later, the case was referred to the Supreme Court, where the accused were acquitted. The Court
noted that the girl did not show signs of any resistance or injury, and that her consent was
voluntary. Also, the girl might have incited the police as she was habituated to sex. The Supreme
Court of India has ruled that the sexual intercourse that was in question was not rape.

Changes brought upon the laws after this case

Due to the controversial nature of the verdict, which led to widespread protests and public
outcry, India’s rape law was amended in 1986. During the time of the Mathura rape case, the
rape laws in India were heavily biased towards rapists.
The main issue which was raised was about the concept of consent. Earlier it was very difficult
for women to prove that they did not consent to sexual intercourse. After the judgement of this
case, in 1983, the Criminal Law (Amendment) Act was passed, which brought various changes
in the Indian rape law.

In 1983 Criminal Law Act, a new Section 114(A) of the Indian Evidence Act was inserted to
enable courts to presume that the victim did not consent to the sexual intercourse if she was
assaulted if she had said that she did not consent for the intercourse.

Subsections a, b, c and d of Section 376 of the Indian Penal Code underwent various

amendments made by the Criminal Law Amendment Act, 2013. This Act also adds the word
“custodial rape” to the Indian Penal Code 1860 for offenses that are carried out when a victim is
in custody.

Liable persons under Section 376 (2) shall be punished with a rigorous imprisonment for a term
not less than ten years or for life with a fine. The Act amended the principle of the burden of
proof always lying on the Victim. In cases where sexual intercourse has already occurred, the
burden of proof will now lie on the accused. Section 228A of the Indian Penal Code prohibits the
publication of the identity of rape victims. Following the amendments made in 2013, by Criminal
Law Amendments Act.

The Mathura rape case, which sparked massive protests and public outcry, had a significant
social and legal impact in India. It led to the establishment of various laws related to sexual
harassment.

 Nirbhaya case

Mukesh & Anr. Vs State for NCT of Delhi & Ors. [ii]

On December 16, 2012, a young female physiotherapist was brutally raped by five individuals
and a minor on a moving bus in Delhi. The attackers pulled out the victim’s intestines using an
iron rod. Despite all efforts to save her, she died in a hospital.

One of the accused reportedly committed suicide in the jail. The court also sentenced four adults
to death and one juvenile to three years in a juvenile facility. In a case where a juvenile was
involved in a sexual assault, the victim was punished with three years in a rehabilitation center.
This incident deeply affected the conscience of the public and sparked debate on how to respond
to such inhumane crimes. Various legislative reforms were then made to address this issue.

Aftermath and Amendments made:

After this incident, JS Verma, the former Chief Justice of India, headed a panel that was formed
to study the criminal laws in the country and suggest possible amendments to enhance the
punishment for sexual assault and Indian Rape Laws.

As recommended by the committee, The Criminal Law Amendment Act, 2013, was enacted to
provide for the amendments in various laws related to sexual offences. Some of these included
the Indian Penal Code, 1973, the Indian Evidence Act, 1872, and the Protection of Children
from Sexual Exploitation Act, 2012.

The Criminal Law Amendment Act, 2013, was enacted to provide for the amendments in several
laws related to sexual offences. Among the changes made was the provision for capital
punishment for rape cases where the victim dies or is left in a permanent vegetative state.

 Marital Rape

Independent Thought Vs Union of India and Anr. [iii]

Facts:

The case was made by Independent Thought, a human rights organization founded in 2009. The
organization’s petition was made against the Exception 2 to Section 375 of the Indian Penal
Code, which provides for discrimination against a girl child. The Criminal Law Amendment Act,
2013, raised the age of consent for sex from 16 to 18. However, Exception 2 states that sex
between a husband and his wife can be performed even if the marriage is not consensual and for
that the woman has to be above 15 years of age.

The POSCO Act 2012 defines age for consensual sex as 18 years old. However, the
above Exception 2 is contradictory to the Section 3 of the Act which criminalizes the possession
of obscene materials.
Judgement and Changes:

The Division Bench discussed the various issues related to the case and gave a verdict which
stated:

The Exception 2 discriminates against married and unmarried girls without a reasonable nexus.
It is against the dignity and reproductive choice of a girl child. The Parliament has raised the age
for consent from 15 to 18 years.

So Exception 2 was deemed to be against the rights of the girl child and unjust.

Proponents of the exception 2 then were changed to – that sexual intercourse or sex by a man
with his spouse is not rape if the woman is older than 18 years old.

 Sexual Assualt and Rape at Workplace

Vishaka Vs State of Rajasthan and Ors. [iv] (Bhanwari Devi Case)

This case dealt with the protection of women from sexual harassment at work. In 1992, a social
worker was allegedly gang-raped when she tried to stop a child marriage taking place and her
complaint was not pursued properly despite lodging an complaint in the police station. She took
her case to get justice through the trial court, which ruled that the accused were not guilty due to
the lack of evidence.

This led to many women groups and organizations going against the verdict. Which resulted in
the issue of sexual harassment in the workplace being pursed and brought to the Supreme Court
of India by a public interest lawsuit. This case has been regarded as one of the most significant
cases in the country’s history. The court noted that sexual harassment of a woman at work was
considered a violation of her rights under Articles 14, 15, 19 and 21 of the Indian Constitution.

Legal Changes brought after the case:

In response to the sexual harassment at work issue, a comprehensive legislation was proposed,
which laid down various guidelines and requirements that employers and other responsible
parties should meet in order to implement the provisions of the case. It is the duty of employers
to prevent sexual harassment in the workplace. They should also consult with their staff
members about effective ways to resolve the issue.

A complaint committee should be established at all workplaces to handle complaints. It should

be headed by a woman employee and should have a third party or NGO participation along with
that half of the members should be of women only. All complaints about sexual harassment of
women employees would be handled by this committee only, and the employers would be
required to take appropriate action. The committee would then advise and recommend the victim
for the next course of action.

These guidelines were created to give women the protection they deserve from harassment in
both the public and private sectors. The Indian Government enacted the Prevention of Sexual
Misconduct at Work Act, 2013, following the Supreme Court’s judgment. This Act came into
force on December 9, 2013.

 Priyanka Reddy Rape Case[5]–

It is the case where harsher punishment was given by the police.

Facts

Dr Priyanka Reddy was a veterinary doctor from Hyderabad. On 28th November 2018 she was
raped, murdered and her body was found burnt on the road.

She was returning home from her job at night and she was raped by four men and then burnt.
While she was returning home, her vehicle’s tire got punctured. Suddenly four men came and
asked if she needed any help.

Later, they raped and murdered her. Her family tried to contact her however they were not able
to so they went to file an FIR in the police station. They found the body half-burnt under the
bridge. Soon after, the police started the investigation and arrested four men.

Further, the police took all the accused to the scene of the crime to recover certain articles
belonging to the deceased rape victim and for reconstructing the scene of the crime.
However, the accused escaped from the location along with firearms, and hence, the police
encountered all of them.

Judgement

The National Human Rights Commission and the Supreme Court have moved against the
concerned police encounter of the four accused.

Two Public Interest Litigation (PIL) have been moved by Advocates GS Mani and Pradeep
Kumar Yadav, and another by Advocate ML Sharma who has registered an objection to the
killings of the accused who were not proven guilty.

 State of Maharashtra Vs Prakash[6] –

To constitute for the offense of rape, use of force is not necessary, mere threat of use of force is
sufficient.

Facts

The victim Nirmala with her husband had come to her village to attend a fair. They were staying
at her parent’s house. Around 2 am-midnight, the husband of the victim was called by accused
no.2 (businessman) at his house. Later on, again he was called by accused no.1(police constable)
at the house of accused no.2.

Accused no.1 alleged that the husband was going to destroy the idol of Ganpati and hence
summoned the victim to the house of accused no.2. Reaching the spot, she was forced to sign
certain papers under the threat that her husband would be placed in custody in case she does not
sign the papers.

The accused took her inside the house and raped her one by one.

Subsequently, a case was filed against the accused. The accused in turn claimed that the victim
did not show any signs of resisting the intercourse so they cannot be held liable for forced
intercourse.

Judgement
The Bombay High Court held that the said intercourse was neither out of love nor for money.
Therefore, the only explanation that remains is that she was coerced into the act.

The Court held that for the offense of rape it is not necessary that there should be actual use of
force, a threat of use of force is sufficient.

The victim had mentioned that her husband was beaten and she was threatened that her husband
shall be placed in custody. Hence, she submitted herself under the threat of a police constable.
Thus, the respondents were held liable under Section 376 of the Indian Penal Code.

 Bhupinder Singh Vs Union Territory of Chandigarh[7] –

It is rape if a man falsely makes another woman believe that she is lawfully married to him and
has sexual intercourse with him when he is in fact already married to someone else.

Facts

The victim was employed in a bank and the accused was also working in another bank. He used
to come to her office and they developed intimacy. He asked her for marriage without disclosing
that he is already married.

They both got married in a Gurudwara and started living together. Soon after, she got pregnant
but the accused got her aborted against her wishes. Further, she also left her service in September
1991 under the pressure of the accused. Later, she again became pregnant.

One day she met the friends of the accused who told her that her husband was already married
and was having children from the same wedlock. On the same day, the accused left the home of
the victim. So, she filed a complaint against him.

Judgement

The High Court of Punjab and Haryana held that the case was covered by Section 375(4) of the
Indian Penal Code which says that it is rape if a man falsely makes another woman believe that
she is lawfully married to him and has sexual intercourse with him when he is in fact already
married.
The victim in this case had sexual intercourse with the man believing him to be her husband.
However, in reality, he was not her legal husband. Thus, the Court imposed rigorous
imprisonment for three years and compensation of Rs. 1 lakh.

 Gurmeet Singh & Ors Vs State of Punjab[8]–

Sexual intercourse against the will of the woman constitutes to rape.

Facts

A young girl below 16 years of age was studying in 10th standard and was giving her exams.
One day after returning from the exam, the accused with others took hold of the girl and took her
inside the blue color ambassador car. They threatened her that if she raises her voice, she will be
killed to death.

They took her to the kotha of the tube well. Further, they compelled her to drink liquor
misrepresenting it to be juice. One by one they committed rape on her and when she raised an
alarm she was threatened to kill.

All the boys committed sexual intercourse with the girl against her will. Subsequently, the case
was registered in the police station.

Judgement

The Court in this case held that according to Section 327 of the Criminal Procedure Code the
trial of sexual offenses should be conducted in camera.

So, the Court held that if a trial is conducted in camera, it will enable the victim of crime to be a
little comfortable and answer the questions with greater ease in not too familiar surroundings.

The Court also held that the name and address of the victims should be kept anonyms in the
criminal proceedings. It should not be published anywhere to save her from the embarrassment
of being a victim of a sex crime.

Hence, the Court punished the accused with rigorous imprisonment of five years and a fine of
Rs. 5000.
  Harpal Singh & Ors Vs State of Himachal Pradesh[9]–

Sexual intercourse without consent is rape.

Facts

A girl below 16 years of age was sent by her mother to visit her ailing aunt in another village. On
her way back home, she was falsely told that her brother was lying in the dispensary and she was
being called there.

The girl went with the accused and was trapped in a room by him. Two more people came and
they all started doing sexual intercourse with her against her will. She was released the next day.
However, she and her family decided to keep this a secret.

The matter was subsequently published in a newspaper and the police started an investigation
against the same.

Judgement

The Court held that it was quite evident that she was below 16 years of age and was about 15
years of age. Further, she did not give consent for sexual intercourse.

Hence, the accused is liable under Section 375 of the Indian Penal Code. He has to undergo
rigorous imprisonment of four years and a fine of Rs.500.

 Himachal Pradesh Vs Mango Ram[10]

Act committed against the will amounts to rape.

Facts

The victim was the eldest daughter of Jagia Ram. Her mother asked her to get plough. While
going there she was accompanied by the accused. When she went inside the house to get plough,
the accused caught her from behind.
The victim tried to relieve herself but she was overpowered by the accused. She was made to lie
on the floor of the cowshed. The accused then untied the knot of her salwar and lifted it down
and thereafter, committed sexual intercourse with her.

There was bleeding from her private part. The victim returned home immediately and told her
father Jagia Ram about the incident. Further, FIR was filed against the accused.

Judgement

The Supreme Court, in this case, held that this was a case of rape as the girl tried to relieve
herself but the accused overpowered her and the act was committed against her will.

Thus, this amounts to rape under Section 375(2) of the Indian Penal Code. The accused was held
liable for the offense of rape.

 State of Maharashtra & Anr Vs Madhukar Narayan Mardikar[11]–

A woman of easy virtue is entitled to privacy and no one can invade her privacy as and when he
likes.

Facts

The respondent was a police inspector. One day he allegedly visited the hutment of the victim
Banubi in uniform. He demanded to have sexual intercourse with her to which she refused. But
he had her by force. Therefore, she resisted his attempt and raised a huge cry.

Her husband all the neighbours came outside the hutment. Further, she registered a complaint
against the policeman. The respondent contended that the victim was an unchaste woman and her
evidence would be unsafe to rely upon.

Judgement

The Court held that a woman of easy virtue is entitled to privacy and no one can invade her
privacy as and when he likes. So, also it is not open to any and every person to violate her person
as and when he wishes. She is entitled to protect her person if there is an attempt to violate it
against her wish. She is equally entitled to the protection of law. Therefore, merely because she
is a woman of easy virtue, her evidence cannot be thrown overboard.

Therefore, the Court convicted the respondent and removed him from the service.

 Anurag Soni Vs State of Chhattisgarh[12]–

Performing sexual intercourse after the refusal of victim amounts to rape.

Facts

The victim was a Pharmacy student and the accused was posted as a junior doctor in a
government hospital in some other town. The victim had a love affair with the accused.

The accused had even proposed to her for marriage and this fact was known to their family
members.

Due to his posting, he called her at her place. The victim went by train to his place. Further, she
stayed at his place. During this period, he tried to establish physical relations with her despite her
refusal on the pretext of marriage.

Later, the victim came home and the accused asked the victim not to disclose their physical
contact.

After few days, the victim asked the accused about their marriage but she did not receive any
reply from him. Further, he refused to marry her on the ground that he had already married
another woman. Therefore, the victim filed a case against the accused on the ground of rape.

Judgement

The Supreme Court held that the accused from the beginning did not intend to perform marriage
with her and gave false promise of marriage to her due to which she gave consent for the sexual
intercourse.

However, the Court held that such consent does not constitute valid consent and comes within
the ambit of the misconception of fact given under Section 90 of the Indian Penal Code.
The Court also held that sexual intercourse on a false promise of marriage falls under the ambit
of Section 417 Cheating of the Indian Penal Code.

Hence, the Court convicted the accused under Section 375 of the Indian Penal Code and
sentenced him to rigorous imprisonment for 10 years and a fine of Rs. 50,000.

 Tulsidas Kanolkar Vs State of Goa[13]–

Consent obtained due to unsoundness of mind is not a consent, it amounts to rape.

Facts

The victim in this case was mentally impaired. The accused knowing this took advantage of the
situation and had sexual intercourse with her. However, no one was aware of this happening.

One fine day her family members found out that she was pregnant. When she was asked who put
you in this position, she pointed towards the accused.

Therefore, a case was filed against him. He however contended that he thought the victim gave
consent in form of submission to the act.

Judgement

The Court held that the accused took advantage of her mental condition. It is specifically
mentioned in Section 375 of the Indian Penal Code that consent obtained due to mental illness/
unsoundness of mind is no consent. It amounts to rape. Hence, it is quite evident that the accused
took advantage of the victim and committed rape on her.

Therefore, the accused was sentenced to imprisonment for 10 years and a fine of Rs. 10,000.

 State Of Andhra Pradesh vs Bodem Sundara Rao[14]

The Supreme Court in this case enhanced the punishment for rape.

Facts
A girl aged between 13-14 years was sexually assaulted by the accused in broad daylight. The
girl was carrying lunch for her father who was grazing cattle in the fields. While going there the
accused caught hold of her and committed rape on her despite her protestations.

The girl was bleeding profusely from her vagina because of rape. Later, she informed this to her
father and mother, and FIR was filed against the accused.

Initially, he was sentenced to rigorous imprisonment of 10 years under Section 376 of the Indian
Penal Code. However, he appealed in the High Court and the Court reduced the punishment to 4
years imprisonment.

Judgement

The Supreme Court in this case increased punishment of accused from four years of rigorous
imprisonment to seven years of rigorous imprisonment.

The Court held that crime against women are on the rise. Imposition of grossly inadequate
sentence and particularly against the mandate of the Legislature not only is an injustice to the
victim of the crime in particular and the society as a whole in general but also at times
encourages a criminal.  The heinous crime of committing rape on a helpless 13/14 years old girl
shakes our judicial conscience. The offence was inhumane. Thus, the punishment was increased.

 Chhote Lal Vs State of UP

The Supreme Court in this case explained the meaning of “against the will” in rape cases.

Facts

The victim was going somewhere in the evening. Three accused came and caught hold of her and
when she tried to raise an alarm, they gaged her mouth.

Further, they took her to another village. Again, they took her to some another place where they
kept her in a rented room.
The accused committed forcible intercourse with her. Whenever the victim asked about returning
home, he used to gag her mouth and threaten her. As the victim was missing for many days, her
brother filed an FIR against the accused of the kidnapping of his sister.

Later, the victim was found by the police. And complaint was filed against the accused under
Section 375 and 376 of the Indian Penal Code.

Judgement

The Supreme Court held the accused guilty and sentenced him to imprisonment. Further, the
Court explained the meaning of the phrase against the will.

The Court said that the phrase means sexual intercourse done by a man with a woman despite her
resistance and opposition”.

Conclusion

Rape in India is a major problem. Now and then we hear rape committed on some or the other
women. And the most disgusting part is that the rape is committed on small girls and even old
ladies who are of seventy or eighty years of age.

Therefore, it is very necessary to make laws more stringent so that people will think twice before
committing such horrendous crimes.

It is also very important for women to report the crime, understand their rights. Then only the
crime rate will reduce in our country and once again India will be known as a safe country.
According to the National Crime Records Bureau of India, there are around 88 rape cases
reported in the country every day. This alarming figure is a cause for concern as it shows that the
number of sexual crimes in the country has increased significantly.

Section 375 of the Indian Penal Code defines rape as an offence that occurs when a man has
intercourse with a woman without her consent or if she is a minor. And under this section mere
penetration is enough for that act to be considered as the offence of Rape.

There are a lot of cases of rape that are not reported to the police. As a result, the number of
cases has increased. Due to the lack of awareness of women’s rights, many victims do not come
forward and report sexual assault. It is very important that the society understands that the
victims are not at fault and that they deserve to be supported instead of ostracized. When the
public views the rape incidents in a different manner, then the laws related to it will be properly
implemented.