Give the definition of Rape as amended by The Criminal Law (Amendment) Act, 2013? When is a man liable to commit rape with his own wife?

Question: Give the definition of Rape as amended by The Criminal Law (Amendment) Act, 2013? When is a man liable to commit rape with his own wife? [U.P.C.J. 2015]

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Answer

Section 375 of the IPC defines the offense of rape. It is unlawful sexual intercourse between a man and a woman without the woman’s consent or against her will under any of the seven circumstances enumerated in section 375 of the IPC.

Prior to 2013, the Indian Penal Code (IPC) defined rape as sexual intercourse by a man with a woman without her consent. Most cases fell within the first limb of the section – ‘sexual intercourse without consent. “Sexual intercourse” was not defined in the IPC, and the explanation therein stated that penetration was sufficient to constitute “sexual intercourse”.

Prior to the amendment, as had been laid down explicitly in Sakshi v. Union of India [AIR 2004 SC 3566] any other form of penetration such as penile/anal penetration, penile/oral penetration, finger/vaginal penetration, or object/ vaginal penetration were not included to fall under the ambit of penetration which was limited only to penile/vaginal penetration. It was this penile-vaginal penetration to an extent that would be required to meet the statutory requirement of ‘sexual intercourse’ to constitute rape.

The revised section 375 has widened the definition of rape. It, unlike its earlier version, is not confined ‘rape’ merely to penile-vaginal penetration (in the circumstances specified thereunder) but is also extended to (i) penile-urethra, penile-oral, or penile-anal penetration; (ii) object-vaginal, object-urethra, or object-anal insertion; (iii) insertion of a part of the body, other than the penis, in the vagina, the urethra or anus of a woman; (iv) manipulation of any part of the body of a woman for causing vaginal, urethral or anal penetration, and (v) application by a man of his mouth to the vagina, urethra or anus of a woman or making her do so with him or any other person.

Its essence lies in the ‘penetration’, howsoever slight, of the penis, or ‘insertion’ of any object or part of the body (other than the penis), or manipulation of any part of the body of a woman for penetration into the vagina, urethra, or anus of a woman.

Further, Exception 2 to s 375 states that sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape. It, thus, keeps outside the ambit of ‘rape’ a coercive and non-consensual sexual intercourse by a ‘husband’ with his ‘wife’ (above fifteen years of age) and thereby allows a ‘husband’ to exercise, with impunity, his marital right of (non-consensual or undesired) intercourse with his ‘wife’. However, sexual intercourse by a man with his own wife, if she is below fifteen years does not amount to rape. So, a man is liable to commit rape with his own wife if she is below 15 years.

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