INTRODUCTION

The most heinous crime related to women is Rape. Rape, not only physically but also
emotionally and mentally destroys a woman. And, even society pushes the girl towards a severe
mental trauma. It completely kills a woman from inside and all her dreams and feelings come to
an end.

Some laws have been made describing Rape and its punishment under the Indian Law. But, any
punishment for Rape won’t ever do justice with the pain of rape victim. Like, even death
punishment for rape will not be enough, some strict punishment should be made for the rapists to
give complete justice for the rape victim. But, if compared to the early times, the laws have been
amended and made slightly strict. [1]

And, on the other hand, unnatural offences covers unnatural sexual intercourse that is against the
normality of nature. Unnatural, here means sexual intercourse, which does not form a part of
reproductive sexual intercourse. The guilty or the accused commits this offence either with a
man, woman or animal.1

Laws on Rape
The word ‘rape’ arises from the Latin word ‘rapio’ which means ‘to seize’. So, rape basically
means a forcible seizure. Rape is the sexual violation without the consent of woman, with fraud
or force.

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The Indian Penal Code describes sections related to the laws on rape and its punishment. Section
375 defines rape and Section 376 defines its punishment. Section 376A makes husband liable to
punishment for intercourse with his wife during separation and Sections 376B to 376D gives
punishment for ‘custodial rape’.2 [1]

Section 375

According to Section 375.

Rape: A man is said to commit "rape" who except in the case hereinafter excepted, has sexual
intercourse with a woman under circumstances falling under any of the five following
descriptions:

Firstly. Against her will.

Secondly. Without her consent.

Thirdly. With her consent, when her consent has been obtained by putting her in fear of death, or
of hurt.

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

Fifthly. With or without her consent, when she is under fourteen years o age.

Explanation. Penetration is sufficient to constitute the sexual intercours necessary to the offence
of rape.3 [2]

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Exception. Sexual intercourse by a man with his own wife, the wife not being under thirteen
years of age, is not rape.4

Necessary ingredients of Section 375

The section lists some ingredients that prove that the act was against the will and consent of the
woman. So, a woman is not liable for rape. The essential ingredients are:

1. Against her will: It requires that there should be an explicit opposition on the part of the
victim towards the act and still the accused committed the act.

2. Without her consent: Absence of consent is the essence of rape. A man is the best judge
of his/her own interest and will never put herself/himself in any act that can cause
injury. The definition of consent is given under Section 90 of the IPC.

3. By obtaining her consent by putting her or any other person, she is interested in, with
fear of death or of hurt is no consent in law. Obtaining consent by such practices is not a
valid consent.

4. When her consent is obtained by making her believe that she is lawfully married to that
man: In this case, the consent of the woman is obtained by making her believe the
misconception, so that she allows for sexual intercourse but in fact, the person is not the
lawful husband of the woman but just pretends her to be one. So, this is no consent in
law.

5. Consent obtained through unsoundness of mind: When the consent of woman is

obtained by reason of unsoundness or when she can not understand the nature of the act
is no consent in law. This clause is the new addition in this section after the Criminal
Law (Amendment) Act 43 of 1983. It is to protect and safeguard the interest of the
woman, who gives consent to the man for sexual intercourse without knowing the
nature of the act by reason of unsoundness of mind or under the influence of stupefying
or unwholesome substance.

6. Act done when she is under 18 years of age: Consent obtained, when the girl is under
18 years of age is not a valid one. Since, she is unknown to the nature and consequences
of the act. So, she is incapable of giving her consent to any such sexual act. [1]

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 7. When she is unable to communicate consent: Any condition or circumstances that resist
her to give consent to such acts can not be a reason to commit the offence.5

Exceptions under Section 375

There are two exceptions under section 375, that does not form part of rape:

1. Any act which is done during the medical procedure or intervention.

2. Any sexual act done by a man with his own wife, wife not being under fifteen years of
age.

Amendments after 2013

Certain amendments have been made after the Act 13 of 2013. They are as following:

1. Meaning of penetration has been given a different form. Penetration now amounts to
any kind of sexual penetration done by a man into the body of a woman. And in case of
a girl child, of tender age, then trying to do the act of penetration will also amount to
rape.

2. The punishment of rape: Section 376 of IPC describes the minimum punishment of
rape, i.e. seven years of imprisonment under clause (1) which may extend to life
imprisonments.6 [1]

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 3. The meaning of consent has also been expanded by adding the clause (5) under section
375.

26,695 rape cases filed in last 5 years: IGP office report

to HC:

According to ‘The Daily Star total’ of 26,695 rape cases have been filed across the country in
the last five years, said the office of the Inspector General of Police (IGP) in a report submitted
to the High Court today.

Among the cases, 4,331 were filed in 2016, 4,683 in 2017, 4,695 in 2018, 6,766 in 2019, and
6,220 were lodged till October 2020, according to the report signed by Additional Deputy
Inspector General of Police Md Rezaul Karim.

Deputy Attorney General (DAG) Nawroz MR Chowdhury placed the report on behalf of the
IGP's office before the High Court during a hearing of a writ petition in line with its October 21,
2020 order.

DAG also sought two months for submitting a complete report on this issue.7

The bench of Justice Md Mozibur Rahman Miah and Justice Md Kamrul Hossain Mollah set
May 23 for further hearing on the issue.

Meanwhile yesterday, the Supreme Court Registrar General Md Ali Akbar placed another report
to the HC bench through DAG Nawroz saying that a three-member cell headed by him has been

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formed to monitor whether the trials of cases filed under the Women and Children Repression
Prevention Act, 2000, are being completed within 180 days.

The monitoring cell has been constituted in line with a verdict delivered by the HC on December
5, 2016. The verdict was delivered by a High Court bench of Justice M Enayetur Rahim and
Justice JBM Hassan. The full text was released on May 12, 2017. [3]

Section 376
Whoever commits rape shall be punished with 2[imprisonment] for life or with imprisonment of
either description for a term which may extend to ten years, and shall also be liable to fine,
unless the woman raped is his own wife and is not under twelve years of age, in which case he
shall be punished with imprisonment of either description for a term which may extend to two
years, or with fine, or with both.8 [2]

In a recent judgement of State of Karnataka v. Puttaraja (2004), the Supreme Court through
Justice Arijit Pasayat, said that the rapist not only causes physical injuries but also leaves scars
on the dignity, honour and reputation of a woman. So, leniency in punishment of the sexual
offences is against the public interest and such animals should be punished to commit such
heinous crime.9 [1]

It covers those cases of rape which cause such injuries to the woman, that may lead to her death
or persistent vegetative stage (PVS). The punishment for this is imprisonment of not less than 20
years and which may extend to imprisonment for life.

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When a husband, after separation with his wife, commits rape on her, shall be punished with
imprisonment of either description of term of not less than two years and which may extend to
seven years with liability to pay fine.

This section creates a new category of sexual offences that does not amount to rape because the
consent of victim is given, by compelling. These offences are committed by persons who hold a
supervisory power and position in the institution under their control. They take advantage of their
power and authority and forcefully have sexual intercourse. These offences have been known as
‘custodial rape’. Punishment for such offence is imprisonment of not less than five years but may
extend to ten years with fine.

This is a new section that talks about gang rape and describe its punishment. By applying the
joint liability principle, when one or more person commits rape on women together, then they are
liable under this section. Punishment is not less than imprisonment of 20 years but may extend to
imprisonment for life and fine for the medical expenses of the woman.

When a person who was already accused earlier under section 376, if convicted again for the
offence of rape under the said sections, will be punished with imprisonment for life or death.10
[1]

Patterns of Sexual Violence Against Women

and Girls From Socially Excluded
Communities:
In Bangladesh between 2012 and 2019, at least 86 incidents of rape were reported against
victims belonging to an ethnic minority. These communities would primarily include indigenous

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women who are mainly based in the Chittagong Hill Tracts (CHT). The Kapaeeng Foundation
reported an increase in rape of indigenous women and girls from 12 in 2017 to 19 in 2018,
whereby most of the victims were minor girls.

The Law Relating to Sexual Violence

in Bangladesh:

Definitions of Sexual Violence:

• The rape offense is narrowly applied to include peno-vaginal penetration only. Other
forms of sexual penetration are covered under “unnatural offences” or sexual
oppression/assault, which carry significantly lower penalties.
• Bangladeshi law does not provide for any circumstances involving persons in positions of
authority wherein consent is immaterial.
• Bangladeshi law does not deal with the issue of incapacity to provide consent at all, in the
case of adult victims.

Marital Rape:
• Bangladeshi law explicitly permits marital rape of adult women in all circumstances, with
no exception even for when the parties are separated.
• The law explicitly permits marital rape of children over the age of 13. There is a
mismatched punishment clause which provides only for punishment of two years’
imprisonment in cases of marital rape of a child under 12 years of age, with no
punishment designated for marital rape of children between the ages of 12 and 13.
Section 377
Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with
any man, woman or animal, shall be punished with 2[imprisonment] for life, or with
imprisonment of either description for a term which may extend to ten years, and shall also be
liable to fine.

Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the

offence described in this section.11 [2]

Section 377 of the Penal Code describes the act of unnatural offence. Any person who commits
unnatural carnal intercourse with a man, woman or animal must be punished under this section.
The penetration in this section must be done into the anus. Consent in this section is immaterial.
The punishment for this offence is imprisonment of life or imprisonment that may extend to 10
years with fine. The ingredients of this section are:

1. The act should be against the order of the nature.

2. The accused must have carnal intercourse with man, woman or animal.

3. The act was done voluntarily by the accused.

4. Proof of penetration.

Two types of unnatural offences are discussed under this section:

1. Sodomy: It describes the intercourse per anus by a man with a man or with a woman or
with an animal. It may either be homo or heterosexual.

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 2. Bestiality: It means that the sexual intercourse is done either by a man or by a woman
in any way, with an animal or bird.12 [1]

Barriers to Accessing Justice Within the Criminal

Justice System:

In addition to a review of the rape laws, through interviews with survivors of sexual violence and
stakeholders, our report found the implementation of rape laws remain poor and survivors,
particularly those from communities marginalized based on caste, class, and ethnicity, face many
obstacles in accessing justice, including:

• corruption amongst law enforcement officials,

• failure of the police to register cases of sexual violence,
• the long delays in police investigation and trial of rape cases,
• the extremely low conviction rate in rape cases (around 3%),
• pressure from families, community, and shalish members to enter into extra-legal
settlements and many others. [4]

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Conclusion
Despite being such laws and punishments, rapists don’t shy to commit such crimes with women.
They don’t care whether the girl is 5 years old, 25 years old or 70 years old, they just commit the
offence and completely destroy the life of women. More severe punishments should be made for
such offences and the rape cases should be taken very seriously. Also, women need to be strong
as well to fight such animals. And the laws should focus more on the roots of this crime rather
than just punishing the rapists.

References

[1] "Lexpeeps," 10 JUNE 2020. [Online]. Available: https://lexpeeps.in/laws-on-rape-and-unnatural-

offence/.

[2] I. Ahmad, "Rape And Unnatural Offences," in THE PENAL CODE,1860, Dhaka, Sufi prokashpni, 2024,
pp. 170-171.

[3] S. D. Report, "26,695 rape cases filed in last 5 years," The Daily Star, Dhaka, 2021.

[4] "equalitynow," 2024. [Online]. Available:

https://equalitynow.org/learn_more_sexual_violence_in_bangladesh/.