Offences Against Women and Children

A. Definition (s.63; IPC s.375)

A man commits rape if he (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her do so with him or another person; (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, urethra or anus; (c) manipulates any part of the body of a woman so as to cause penetration; or (d) applies his mouth to the vagina, anus or urethra of a woman or makes her do so with him or another person, under any of seven descriptions:

1. Against her will.

2. Without her consent.

3. With her consent obtained by putting her, or any person in whom she is interested, in fear of death or hurt.

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

5. With her consent, when at the time of giving 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.

6. With or without her consent, when she is under eighteen years of age.

7. When she is unable to communicate consent.

• Explanation 2 (consent): unequivocal voluntary agreement by words, gestures or any form of verbal or non-verbal communication; mere lack of physical resistance is not consent.

• Exception 1: a medical procedure or intervention is not rape. Exception 2: sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape (the marital rape exception remains). Independent Thought v. Union of India (2017) read down the IPC exception to raise the age from 15 to 18. A challenge to the exception itself (RIT Foundation v. Union of India) produced a split verdict in the Delhi High Court (2022) and is pending before the Supreme Court.

B. Punishments (ss.64-71)

• Case law: Tukaram v. State of Maharashtra (Mathura rape case, 1979) (acquittal on the ground of submission; led to the Criminal Law (Amendment) Act, 1983, which created custodial rape and the presumption of absence of consent, now in BSA s.120; Evidence Act s.114A); Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (1983) (testimony of the victim needs no corroboration, as long as it is credible); State of Punjab v. Gurmit Singh (1996) (sensitive approach to rape trials, in-camera trial); Vishaka v. State of Rajasthan (1997); Lillu @ Rajesh v. State of Haryana (2013) (the two-finger test violates the right to privacy and dignity); State of Maharashtra v. Madhukar Narayan Mardikar (1991) (the character of a woman is irrelevant; even a woman of easy virtue is entitled to protection); Mukesh v. State (NCT of Delhi) (2017) (Nirbhaya); Pramod Suryabhan Pawar v. State of Maharashtra (2019) (false promise of marriage versus breach of promise: consent given under a misconception of fact must be assessed; a promise that was false from the beginning vitiates consent); Uday v. State of Karnataka (2003); Deepak Gulati v. State of Haryana (2013).

• Legislative history: the Justice J.S. Verma Committee (2013) and the Criminal Law (Amendment) Act, 2013 (post-Nirbhaya) added acid attack, stalking, voyeurism, sexual harassment, disrobing and trafficking; the Criminal Law (Amendment) Act, 2018 (after the Kathua and Unnao cases) raised minimum punishment and introduced the death penalty for rape of girls under 12.

• Cases: Rupan Deol Bajaj v. K.P.S. Gill (1995) (outraging modesty; test of a reasonable person and the reaction of the woman); Raju Pandurang Mahale v. State of Maharashtra (2004) (modesty is an attribute associated with female sex); Vishaka v. State of Rajasthan (1997) and Medha Kotwal Lele v. Union of India (2013) (Vishaka Guidelines for workplace sexual harassment, later enacted as the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH); Internal Committee needed at workplaces with ten or more employees; local committee at district level); Aureliano Fernandes v. State of Goa (2023) (the Court criticised delays in implementing the POSH Act).

• Cruelty by husband or relatives (s.85; IPC s.498A): husband or relative subjects a woman to cruelty: up to three years and fine. Cruelty (s.86) = (a) wilful conduct likely to drive the woman to suicide or to cause grave injury or danger to life, limb or health (mental or physical); (b) harassment with a view to coercing her or any related person to meet an unlawful demand for property or valuable security. It is cognizable and non-bailable under the CrPC/BNSS schedule, and non-compoundable (in ordinary cases).

• Cases: Arnesh Kumar v. State of Bihar (2014) (no automatic arrest; police must record reasons under the notice-of-appearance procedure); Sushil Kumar Sharma v. Union of India (2005) (upheld the constitutionality; the Court said misuse cannot invalidate the law); Rajesh Sharma v. State of U.P. (2017) (Family Welfare Committees; later modified in Social Action Forum for Manav Adhikar v. Union of India, 2018); Preeti Gupta v. State of Jharkhand (2010) (cautioned against exaggerated allegations against distant relatives); Kahkashan Kausar v. State of Bihar (2022) (omnibus allegations against in-laws should be examined carefully); in Dara Lakshmi Narayana v. State of Telangana (2024), the Supreme Court again warned of the misuse of s.498A and s.85 BNS.

• Dowry death (s.80; IPC 304B): see topic 4. Dowry Prohibition Act, 1961: giving, taking or abetting dowry: five years and fine not less than ₹15,000 or the value of the dowry, whichever is more; demanding dowry: six months to two years.

• Protection of Women from Domestic Violence Act, 2005 (civil remedies: protection, residence, monetary relief, custody); Hiral P. Harsora v. Kusum Narottamdas Harsora (2016) (the words "adult male" struck down so that women can also be respondents); D. Velusamy v. D. Patchaiammal (2010) (live-in relationship in the nature of marriage).

• Cohabitation by a man deceitfully inducing belief of lawful marriage (s.81; IPC 493): up to ten years. Bigamy (s.82; IPC 494, 495): marrying again during the lifetime of the spouse: up to seven years and fine; concealing the former marriage: up to ten years. Marriage ceremony fraudulently gone through without lawful marriage (s.83; IPC 496): up to seven years. Enticing a married woman (s.84; IPC 498): up to two years.

• Exceptions to bigamy: the first marriage has been declared void by a court; the spouse has been continuously absent for seven years and not known to be alive. Cases: Sarla Mudgal v. Union of India (1995) (conversion to Islam only to contract a second marriage does not end the first marriage; bigamy is punishable); Lily Thomas v. Union of India (2000) (same).

• Adultery (IPC 497) was struck down by Joseph Shine v. Union of India (2018) and is absent from the BNS.

• Causing miscarriage (s.88; IPC 312): up to three years; if the woman is quick with child: up to seven years. Without the woman's consent (s.89; IPC 313): life or up to ten years. Death caused by an act done with intent to cause miscarriage (s.90). Act done to prevent the child being born alive (s.91). Causing death of a quick unborn child by an act amounting to culpable homicide (s.92).

• Medical Termination of Pregnancy Act, 1971 (amended 2021): termination allowed up to 20 weeks on the opinion of one registered medical practitioner and up to 24 weeks for special categories (survivors of rape or incest, minors, change of marital status during pregnancy, physically disabled women, mentally ill women, foetal malformation, emergency) on the opinion of two practitioners; no upper limit where a Medical Board diagnoses substantial foetal abnormalities. Cases: Suchita Srivastava v. Chandigarh Administration (2009) (reproductive choice is part of personal liberty); X v. Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi (2022) (the Court held that unmarried women are also entitled to 24-week abortion and that marital rape is relevant for the purposes of the MTP Act); K.S. Puttaswamy v. Union of India (2017) (right to privacy includes reproductive choices).

• Exposure and abandonment of a child under twelve by parent or person in charge (s.93; IPC 317): up to seven years. Concealment of birth by secret disposal of a dead body (s.94; IPC 318): up to two years.

• Hiring, employing or engaging a child to commit an offence (s.95; new): three to ten years and fine. Procuration of a child (s.96; IPC 366A): up to ten years. Selling a minor for prostitution (s.98; IPC 372): five to fourteen years. Buying a minor for prostitution (s.99; IPC 373): seven to fourteen years. Kidnapping or maiming a child for begging (s.139; IPC 363A).

• Gang rape of a woman under 18 (s.70(2)): life (natural life) or death.

• Child = any person below 18 (gender-neutral). Consent of a child is immaterial. Offences: penetrative sexual assault (ss.3-4: ten years to life; under 16: twenty years to life); aggravated penetrative sexual assault (ss.5-6: twenty years to life or death, after the 2019 amendment); sexual assault (ss.7-8: three to five years); aggravated sexual assault (ss.9-10: five to seven years); sexual harassment of a child (ss.11-12: up to three years); use of child for pornography (ss.13-14); storage of child pornography (s.15).

• Procedure: mandatory reporting (s.19; failure punishable under s.21), Special Courts (s.28), presumption of guilt (s.29, rebuttable), child-friendly procedure, in-camera trial, identity protection (s.23).

• Recent cases: Attorney General for India v. Satish Ekanathrao Ghoge (2021) (the "skin-to-skin" contact requirement of the Bombay High Court was set aside; sexual intent, not skin contact, is the test); Just Rights for Children Alliance v. S. Harish (2024) (storing or viewing child pornography is an offence under POCSO s.15 and IT Act s.67B; the term "child pornography" should be replaced by child sexual exploitative and abuse material (CSEAM)); Independent Thought (2017); Sakshi v. Union of India (2004) (rules for child witness trials).

• Child marriage: Prohibition of Child Marriage Act, 2006 (marriage of girls under 18 and boys under 21 is voidable at the option of the child; offenders face two years' rigorous imprisonment and fine up to ₹1 lakh); Society for Enlightenment and Voluntary Action v. Union of India (2024) (guidelines for effective enforcement; personal laws cannot override the Act).

• Other laws: Immoral Traffic (Prevention) Act, 1956; Indecent Representation of Women (Prohibition) Act, 1986; Juvenile Justice (Care and Protection of Children) Act, 2015; Child Labour (Prohibition and Regulation) Act, 1986 (amended 2016: prohibits employment of children under 14 in all occupations and adolescents in hazardous work).