Exceptions to Section 375 IPC

Exceptions to Section

In the Indian Penal Code, 1860, Section 375 has two exception clauses. The first one states that a medical procedure or intervention shall not be considered rape, and the second one states that sexual intercourse or sexual acts by a man with his own wife, if the wife is not under eighteen, is not considered rape. The first exception clause states that a medical procedure or intervention shall not be considered rape.

Exception 1: medical procedure shall not constitute rape

Rape cannot be considered committed during or during a medical procedure or intervention. According to this exclusion provision, a medical intervention committed against a woman cannot be classified as a felony or an act of rape when brought before a court of law.

Exception 2: sexual intercourse by a man with his own wife

The minimum age was raised from 15 to 18 in a 1949 amendment to the Indian Penal Code, 1860. There may be situations where a legal check is necessary to ensure that men do not abuse their marital rights. This provision will apply in cases when the husband has been abusive. Independent Thought vs. Union of India (2017), decided by India's highest court, established that having sexual relations with a girl under the age of 18, whether she is married or not, is rape. According to the Court, there is no reasonable connection between exception 2's distinction between married and unmarried female children and the purpose that is being pursued. This arbitrary distinction goes against the spirit and ethos of Article 15(3) and Article 21 of the Constitution. It also violates the spirit of various laws that protect a girl's privacy during pregnancy.

Landmark Judgments under Section 375

Due to a dramatic rise in rape cases in India, Section 375 has become an essential topic of discussion. Here are a few of the most important cases:

Rao Harnam vs Union of India (1957)

In this case, Kalu Ram sent her 19-year-old wife to the accused to win his favour. The girl initially resisted the husband's move but was pressured into submission. The accused raped her to the point of instant death. According to the High Court, the accused is responsible for the crime since she gave him physical access to her in response to threats from her husband. This decision is significant because it clarifies the line between informed consent and passive acceptance drawn by the high court when it ruled that:

• One act of powerlessness in the face of an unavoidable obligation cannot be taken as consent.
• If cooperation is forced, then consent is not voluntary. Being subservient is not a sufficient condition for consent.
• A woman is deemed to have consented if she voluntarily submits to an act. Acceptance of the planned action must be made knowingly and voluntarily.

Tukaram and Anr. v. State of Maharashtra (1978)

Mathura, an orphan girl 18 years old, was brought to the police station after her brother filed a report of her abduction. They kept Mathura up late. Constable Ganpat and Molester Tukaram sealed the bathroom door from the inside and dragged her into rape and molestation. The accused and accuser were friends; thus, the judge labelled their sexual encounter as consenting sex. The judgement was challenged in the BombayHigh Court, which reversed it by drawing a line between consent and passive submission and ruling that they were responsible because they had not actively given permission to be sued. They argued in the Supreme Court that there were no marks and that the incident had been calm, despite their familiarity with the charges against them. The Supreme Court's decision was roundly criticized, and as a result, the probe that followed concluded that the victim's body marks were unimportant. Four decades ago, the Mathura rape case shook the country, and more recently, the Nirbhaya rape case also upset the nation. This case exemplified the current criminal laws' flows. The ruling was rendered moot by a change to the penal code.

Legal Changes after this case:

· Changes were made in Section 376 of the Indian Penal Code.

· Custodial Rape provision under Section 376(2) was added.

· The Punishment was prescribed to a term not less than 10 years

· Section 228A Indian Penal Code was added not to reveal the identity of the rape victims.

State of Maharashtra v. Madhukar Narayan (1990)

The defendant allegedly entered the prosecutrix's hut and engaged in sexual activity despite her attempts at resistance. He justified his visit to the shack by saying that the woman who lived there dealt in illegal booze. She also committed adultery while married. The inspector was not punished by the Bombay High Court. The Supreme Court ruled that the inspector's dismissal was appropriate since his assessment of the women's past was inappropriate. In this case, the court's precedent prohibiting consideration of women's backgrounds is significant. The lower courts in India must still follow it because of Article 141 of the Indian Constitution.

Vishaka v. State of Rajasthan and Ors. (1997)

Although a report was filed, no investigation was launched into the alleged gang rape of Bhanwari, a social worker helping end child marriages. Due to the lack of medical proof, the trial court became familiar with the accused. The topic of sexual harassment in the workplace has been the subject of a Public Interest Litigation. The right to labour in conditions consistent with fundamental human rights is guaranteed by Articles 14, 19, and 21 of the Indian Constitution, hence the court based its decision on those provisions. The Supreme Court issued several guidelines in this case, commonly referred to as the "Vishaka guidelines." A major ruling, as it will likely result in new regulations regarding sexual harassment in the workplace. Legal precedent for sexual harassment in the workplace had not before existed in India. These policies were codified into law as part of the Sexual Harassment in the Workplace Act of 2013.

Independent Thoughts v. Union of India (2017)

An Article 32 writ case was filed in the Supreme Court, challenging exemption 2 listed in Section.375, which said that having non-consensual sex with a wife who is older than 15 does not constitute the crime of rape. The court pointed out that there is no rational basis for distinguishing between girls who are married and those who are not. Inflicting sexual violence on one's spouse causes mental damage. So the law was changed to make the minimum age 18 instead of 15. This was a seminal decision because it established a threshold at which non-consensual sexual intercourse with a wife under the age of 18 would constitute the crime of rape, making it one of the most important steps taken to prosecute marital rape, which is an exception under Section 375.

Mukesh & Anr. vs. State for NCT of Delhi & Ors. (Nirbhaya Gang Rape Case) (2017)

A young lady and her male companion had just finished attending a movie and were taking the bus back to their apartment. She was severely raped by all six persons on the bus, including the driver. They started by knocking on the guy holding the iron rod. They were taken into custody the following day. When declaring the verdict, the Supreme Court described the case as "the rarest of the rare" and issued a death sentence. This was a historic ruling, as the court recognized the case as unusual and sentenced the defendants to death. Public outcry in response to this case also prompted the creation of the JS Verma committee, which made several recommendations culminating in a 2013 amendment.

State of Maharashtra v. Vijay Mohan Jadhav and Ors. (Shakti Mills Gang Rape) (2019)

A 22-year-old photojournalist interning for an English magazine in Mumbai went to the Shakti Mills property in south Mumbai, close to the neighbourhood of Mahalakshmi. The accused had bound her up with belts and raped her violently. And that wasn't all they did. They made a threat to publish the victim's images after taking them. The culprit was given a life sentence by the session's court. The victim then contested the verdict and asked for capital punishment. The appellate court ruled that granting the defendant a life sentence would be a travesty of justice, so the death penalty should be imposed. It is a seminal case because the court singled out the rarest of the rare and sentenced the offender to death.