SECTION 375 OF THE INDIAN PENAL CODE- A VENGEFUL WEAPON
Anukriti Rastogi and Amal Tripathi*
‘While murderer destroys the physical frame of the victim,a rapist degrades and defiles the soul of a helpless female’- Justice Arjit Pasayat
Rapes or outraging the modesty of a woman has been proliferating abnormally without and signs of abating. It's sickening and appalling characteristic makes us wonder how we have lost our humanity and how we are desecrating the lives of others by violating their dignity. Section 375 of Indian Penal Code describes the offence of Rape which is execrated all over the world as it contaminates the dignity and purity of women and simultaneously perturbs the mental and physical health of the victim. At this juncture when the punishment of this crime is being made more stern and severe, there are some women who misuse this section in order to satiate their personal desire by engulfing innocent men into this mire. This article would mainly enlighten the readers on how the section that was created by the legislators for safeguarding the womankind is being misused by its own proprietor and how the man has to go through a lot of anguish because of the malicious act of the female counterpart.
India has become the junction of crimes against women, rapes being the foremost. Its aftermath cannot be comprehended. Every hour there are a cascade of cases flooding our courts, millions of FIR is registered or even some incidents go unreported or unidentified. The misdemeanour is too ghastly to be condoned .It has been rightly said, When you rape, mutilate, terrorize women there is no bigger disgrace.’ Rapes and obliterating the sanctity of women is itself an outrage and its time to dismantle the rape culture. Worldwide various laws have been promulgated to abate rapes and endowing rapists with stringent punishments. India being the epicentre of the worlds’ most horrible rapes have plethora of laws and ordinance to curb the transgression. “RAPE”, the most abominable offence committed against the human body, is severely punished under section 375 of Indian Penal Code, 1860. It is sad to admit that the number of cases concerning the offence of Rape is amplifying with leaps and bounds despite the stern actions and punishments compiled against the culprit charged for this offence. Despite the public fury,the rape-culture continues to be amplified and caused uproar about how rapists have ravaged the victim .Various provisions and laws have been disseminated to assist and ameliorate victims of rape and sexual violence and to uplift ‘right to bodily integrity as adumbrated under article.Rape is now a cognizable offence and it is the rarest of the rare case it invites capital punishment too.
All the laws and ordinance revolves around the section 375 of the Indian Penal code which vividly entails ‘Rape- A man is said to commit “rape” who, in the case hereinafter expected, has sexual intercourse with a women against her will ,without her consent, by coercion, misrepresentation or fraud or at time when she has been intoxicated or duped, or is unsound mental health and in any case if she is under 18 years of age. India has been a witness to heart-wrenching rape cases causing shock-waves around the nation. Nirbhaya ,Asifa case or the veterinary doctor in Hyderabad have perturbed the whole nation. It manifest that the object i.e..deterrence, of various legislations that are enacted by the parliament of our country, is not achieved yet, seeing the frequency of the number of people becoming the victim of such detestable crime. It is a crime not against the individual, but against the society as a whole as it disseminates the fear and apprehension in the minds of the people of our society that their body can be exploited, hurt by some ill minded people on their whims and fancies. The victim of the offence has to undergo mental trauma and ironically has to suffer ostracization in society. Ample of Rape cases which goes unreported, either to save the dignity of a girl or because of the undue influence that the opposite party on the victim. Despite such harsh reality ,there are plethora of cases which are recorded and committed on a daily basis by some perpetrators just to satiate their lust and lewd desire. Every human being in our society who entails the morals of the society and other people regard this offence, with no compunction, as one of the most abhorrent crime which should be dealt with such severity, by compromising the liberty of the perpetrator and his accomplice through imprisonment or by compromising the life by awarding the capital punishment so that it serves as an impediment and instills the fear in the mind of the people that even a minuscule thought of committing such a crime should not uproot in their minds. However, it is paramount to note that in modern times when people are getting more educated, there is a faction in the society who misuse and exploit section 375 of IPC and use it as a vengeful weapon against the person for their own ulterior motive. In our Indian Culture women are regarded as the sacred creature created by God and is treated with utmost respect. It is for this reason that there are various specific legislations that are created for protecting the rights and dignity of women. But what if when provisions that have been created for safeguarding their own person are illegally exploited and manipulated for their own personal benefits or desire. The Constitution Of India does not confer rights based on genders, but does so universally to every human being in our society and it would be a wrong to misuse the safeguarding principles by the women, which would tantamount to the offence of false accusation against the innocent and would be dealt with steely actions by the honorable adjudicators.
Though rape has no justification as it plunders the victim both physically and mentally still some pseudo feminists or women veiled under the #Me Too movement fallaciously incriminates innocent men for their own ulterior motives or satisfying one’s alter ego. This erroneous implication costs a person his life and dignity. A bountiful of farce rape cases are deluging the courts ,most of women alleging rape on the false promise of marriage. This vengeance or revenge turns out to be wrecked for men shattering him as well as his family. The mens rea to falsely accuse the men varies from case to case. Some have the sole intention of revenge, others implicate them to extort money or some amounting consensual intercourse to rape. The question that bothers everyone is why would a woman want to settle with an amount of money if her bodily integrity has been despoiled. Time and again various cases are lodged and it has become quite a task to single out the true ones. Sometimes genuine cases invites too much scrutiny as the number of false accusations are escalating day by day. Though the Supreme court has ruled recently that a consensual sexual relationship on the pretext of marriage is not rape still there lies a lot of commotion and distress between the arrest and acquittal if a man is implicated. It is a set notion that when a woman brings in the case of rape, she has a bona-fide intention and the case is veritable. But such immunity is being tainted and misused very often now. ‘Not All Men Rape’ is not just an axiom, it’s time we understand the gravity and acknowledge that every coin has two sides.
Our law prohibits malicious prosecution ,which entails intentionally prosecuting a person on account of a fake allegation. Bogus claims make the man criminal in front of the society and affects his public-standing. Women allegations are regarded to be more credulous than a man denying it. A Delhi Commission of Women report exhibit that 53.2% of rape cases filed were insincere and a sham. If we look into the statistics of the false charges of rape then the number. of false rape charges have increased. The report says between April 2013 and July 2014.., 2,753 complaints of rape were filed and out of them 1,464 cases were the false charges. However the exact figure for the rest of the years cannot be produced, but still the number. of rape cases and false rape cases are proliferating without any hindrance. The significant reason for the mushrooming false allegations is the 2013 ‘Nirbhaya Amendment’ which gives the immunity to the women not to go for medical tests in rape cases. Malevolent women generally mishandle this prerogative and exploit men. Before the Supreme court and the High Court judgement women complained about rape after a year or so thus preventing any tests. How easily we forget that a man has the right to live with dignity too.
SECTION 375: A Vengeful Weapon
Rape in an offence which is committed by a man if he is involved in sexual intercourse with a woman against her will or consent and here consent entails an unequivocal agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates a willingness to participate in the specific sexual act. “A guy falls in love with a girl, they eventually started dating each other and get involved in a physical relationship, they were ready to marry each other but the family of the boy didn’t agree and he had to retract from the relationship, girl alleges the boy of committing an offence of rape.”
It is ironic to note that in today’s world when women are getting more educated and are involved in a pre-marital sexual act, alleges it to be a rape if the consequences of the relationship which they desire are not achieved. The illustration cited above was the story of most of the false rape charges that are put against innocent men. Women in these cases alleged that they were raped on the false pretext of marriage. It is vital to realize that marriage is a sacred institution and physical relations can be the part of it ,but having consensual sex with someone does not bind him to marry the other person. One cannot compare marriage and intimacy on an equal scale, however ,one can be the part of the other but the vice versa is not true. It is not a contract which binds the man to marry the other person, but a sexual act in which two people with their free consent agree to participate in it. When a girl who has been in a relationship with a man for many years and they repeatedly had sexual relations, later the former cannot allege the man to have raped her if he does not marry her as he didn’t force the girl to get involved in a sexual activity, where the girl is mature and gave her free consent to get involved in a sexual activity it cannot be said to be a rape It is a well known fact that in our society and culture pre-marital sex is considered a grave wrong by the parents and they fear the shame and the dishonour that would be brought by the act of their daughter to their family. It is sad that they prefer to show their children as a Rape victim rather than admitting about her being sexually active. There have been rape cases in which the dispute was settled by the pecuniary measures. No family in the world would sacrifice dignity and no amount of money would suffice and compensate for the pain which is inflicted upon the victim. These are usually the false rape cases in which the alleging party retracts the case once they’re paid the amount they wish. When the trial of the charge of Rape commences against the alleged male person, there are various benefits available for the victim since the very inception of it. Some of them include -: 1) Corroboration of evidence - For the conviction of rape, corroboration is not necessary as no girl or woman would like to throw light on an incident which would oust her from the society or affect her chastity. In Rafique v. State of U.P, Krishna Iyer, J., said, “A judge who sees the totality of the circumstance would not reject the testimony of the rape victims unless there are very strong circumstances initially against its veracity. Therefore, it is not always necessary that the testimony of the victim be corroborated by some other evidence before the accused can be convicted”.
No Injury – In State of Karnataka v. Syed Mehaboob, it was cited that the fact there were no injuries either on the prosecutrix or on the accused was no ground or a reason to hold that no such sexual offence had been committed.
Promiscuous behaviour - It was cited that if a victim has been promiscuous in her sexual behaviour this does not mean that she cannot refute to have sex with anyone and everyone.
Hidden Identity – The identity of the Victim is not disclosed without its permission, however the name of the victim can be included in the judgment given ,but it is preferred not to do so and to render a decision by not revealing the victim. Delving into the first point, it can be comprehended that the accused can be convicted on the lone testimony of the prosecutrix without corroboration. It means that the alleged person from the embarkment of the trial is assumed to be guilty and the onus is on him to prove him completely innocent which in a consensual sex is a hard task to do. Looking at the dark side of this perk, women can easily misuse it if she can fabricate a strong story against the alleged offender. For the second point, there is a question to raise, “What if the body fluid of the boy is found on the genitals of a girl?” will it constitute a strong case against the alleged offender who’s pleading not guilty? The answer would be yes, even if that was the consequence of the consensual sex. In most rape cases the girl naturally resists and there are some injuries suffered on both the sides. Therefore, the misuse of ‘not having injury on the girl does not render the accused not guilty’ can be done maliciously. However, it cannot be denied that there can be cases where a girl under the fear does not physically retaliate against the sexual act. The third point is, however a feeble argument, but still if the prosecution is blamed with the lecherous life style of the male person, it can be taken into consideration while deciding the case but the same is not applicable to the women. The fourth and last point encourages the real culprit in framing the false charges of rape as it would sever two purposes; she would not come into the limelight and can serve her ulterior motive. However, the reason for not disclosing the identity of the victim is to prevent her isolation from society and to protect her dignity but its misuse cannot be denied.
It is the need of an hour to acknowledge that women cannot always be treated above suspicion. Most of the laws passed are to protect and uphold the dignity and honour of the women , but to defend the dignity of the man is equally important too. It’s long overdue to empathise with men and restore their honour. It’s time to realize that no compensation can be provided for the distress, mortification and humiliation. When a woman is raped ,she is regarded as a rape-victim or survivor ,but when a man is acquitted of the rape charges he is looked down upon and is not regarded as a victim of deceit. Now even the legitimate rape cases invites suspicion and disbelief causing lots of hardships and ordeal to the victim provide time for the perpetrators to evade justice. The main sickening idea that women can’t lie about rape is the sole myth for every man to be held liable. Stringent legislations are the utmost requirement to mollify such false rape charges. Modern women need to be cautioned about the ghastly aftermath of their action and a provision for appropriate punishment is called for.
*Anukriti Rastogi and Amal Tripathi are students of Institute of Law, Nirma University and Rajiv Gandhi National Law University, Punjab.