The forceful sexual violation of a human being, known as rape, has had a significantly negative presence in society for hundreds of years. Consent, based on the most simplistic definition of the term, refers to an act which is done with the presence of complete free will with deliberate use of knowledge and the exercise of knowledge based on the potential outcome of the forthcoming act. It implies any act which is done with deliberate knowledge of the potential moral effect of the act and accompanies the weightage of the mind to judge the good and evil that enrages from the act. Any act of consent encompasses three specific criteria – the physical and mental power and ultimately the free use of the physical and mental power of the act doer to determine the consensual nature of the act. This article seeks to explore the different rape laws under criminal law present in the country of India.
Under the pretence of civil law, specifically the law of contracts, consent is defined as an agreement between two or more individuals who agree upon the same thing with the same sense of understanding of the effect of the act or the agreement. This indicates that in the law of contracts, to define consent would be to imply that all of the contracting parties have the same intention regarding the matter at hand. Hence, it is evident that with the absence of consent, a contract would not exist. Yet, even with the existence of consent, if the consent has been obtained through decisive means such as coercion or misinterpretation, the contract would be annihilated. Consent, regardless of the fact of the term not being defined in the Indian Penal code, is of similar terminology in criminal law as it is in the law of contracts. The existence or the absence of consent in criminal law can be imperative for a given situation as it has the power to exempt an individual from any liability in a crime.
Section 375 of the Indian Penal Code, 1860 defines the offence of rape in India, and Section 376 of the act describes the punishment prescribed with the commission of the offence. The offence is the act of penetration or sexual intercourse by a man with a woman against her consent or will and therefore amounting to “rape” . The act of penetration in the commission of rape signifies even the slightest touch of the male penis to the female vagina. If such an act has been committed without the consent or will of the woman, the act amounts to the offence of rape. Henceforth, the most significant aspect in determining whether sexual intercourse between a man and a woman amounts to rape is whether the male penis was inserted into the vagina without the consent/will of the woman. Furthermore, a ruptured hymen is not conclusive to rule aside from the offence of rape in India. In the case of R. v. Furroll, a child was not injured or hurt during the act of sexual intercourse but was diagnosed with the same sexually transmitted disease as that of the accused rapist. Therefore, due to the lack of consent, in this case, the court held the particular act of sexual intercourse to be of rape of the child.
It becomes intrinsically valuable to seek further clarity regarding the concept of "consent". Section 90 of the Indian Penal Code defines consent in a manner which is negative, and therefore the section states what is not considered to valid consent according to the law. Section 90 explains that according to the law, any form of consent procured through means such as coercion, under a misinterpretation of facts, undue influence or consent procured through fear of injury to the person is not considered to be the consent of a free will and thus cannot be used as an answer to a criminal charge. A misconception of fact, as referred to in section 90 of the Indian Penal Code, signifies the nature of the act or the true intention of the act which indicates the effects and therefore the consequences of the act. A misinterpretation of facts may lead to consent in a given situation. Still, for the misinterpretation of facts to be significant under section 90, there needs to exist a misconception of the facts through deception or deceit. In the concept of promise to marry, the consent gained for sexual intercourse through the concept of promise to marry cannot be termed as a misconception of fact based on the promise to be fulfilled at an uncertain date sometime in the future unless the accused never wanted to marry the other person in the first place who on the other hand only consented to sexual intercourse due to the promise to marry. Therefore, consent for sexual intercourse obtained through a mala fide promise to marry from the very beginning to indulge in the act of sex is consent derived by deception and thus is constituted as a misconception of fact.
Rape laws in India form an integral part of the community goal of striving towards the protection of woman against acts of sexual violence. Yet, during this ordeal, justice is often never achieved. This occurs due to several reasons, such as hesitation on the part of the victim to file an official complaint against her aggressor. Further, justice is evaded due to the lack of laws relating to punishment against male aggressors, such as a lack of justice for a woman facing sexual violence from their husbands. Sexual intercourse without valid consent and the will of the woman by her husband is not considered to amount to the offence of rape in India. Therefore, the validity of the laws of rape in India is significant yet flawed at the same time, and conjoined work of the authorities and the judiciary is required for the fulfilment of the goal of the protection of woman.
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