Written by: Shikha Singh (Intern)
Edited by: Anubhav Yadav (Content Head & Developer)
Indian Penal Code enacted in 1860, till date stands to be a vanguard draft of substantive laws prevailing in India. It therefore acts as an umbrella text which covers the offenses and crimes conversant with the Indian society’s framework. The offenses listed are broadly divided in numerous chapters taking into consideration the mind, body, reputation or property. IPC also provides certain general exceptions in the specific cases (including self-defenses) where a person is rescued from being accused on several grounds mentioned in different sections, be it insanity, self-defense etc.
Needs of a Dynamic Society
As we highly admire the ‘Internal Excellence’ of the criminal law document, we also need to take into account that as the society evolves and grows the base of the variety of crimes also expands. Albeit the text of IPC as a substantive laws bible in India, has never undergone a huge change except for the additions made in year 2013, the very definition of rape after the diabolical crime in the Nirbhaya gang rape case (2012). Be it as it may, the dynamic scope of crime is therefore making the field of criminal law evolving and taking into consideration the needs of society at large. To embrace the draft for long one needs to alter the sine qua non changes and tailor it to the needs of contemporary society.
The Contention on Rape Clause IPC: From the Lenses of Courts
Recently a bunch of petitions were filed in the High Court of Delhi challenging the exception clause of section 375 (defining rape) of IPC. The exception of section reads as- “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” The question that led to altercation remains that whether a forceful sexual intercourse done by husband in a fiduciary relationship likes the institution of marriage be prosecuted under rape. The issue of whom do we include in a fiduciary set up could be resolved by looking up to section 376 of IPC especially clause 376(2) and 376C which talks about the person in authority. The section even prescribes for a punishment of extending to 10 years and liable to fine. The issue of marital rape never finds any defining literature in IPC. Justice Hari Shankar after looking into the ambiguity of the section claimed that- it was never the thought process of the legislature that this act should not be criminally prosecuted, but they never classified it explicitly under the definition of rape. Mixed arguments were pitched in the court for the aforementioned issue. The report submitted by Delhi government claims that by non-criminalization of the exception clause under section 376, married women are not left off guard or lack remedy to respond to the forceful act. She can pursue remedies like divorce and so on. On the contrary, couple of petitioners from RIT Foundation and All India Democratic Women’s Association (AIDWA) saw the act against the basic dignity of women and simultaneously it deprives her of her sexual autonomy.