RAPE AND INDIAN PENAL CODE: A WAY FORWARD FOR A GENDER -JUST SOCIETY

The Indian Penal Code which was drafted by Lord T.B. Macaulay and his law commissioners
in 1860 criminalizes rape as a coercive non consensual sexual intercourse with a woman based on the
existing sexual mores in India that time. Macaulay devoted clauses 359 and 360 to the offence of rape.
A man is said to commit rape except in the cases 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 while she is insensible, thirdly with her consent when her consent
has been obtained by putting her in the fear of death or hurt and fourthly with her consent when man
knows her consent is given because she believes that he is different man to whom she is or believe
herself to be married and fifthly with or without her consent when she is under nine years of age. As
an exception, it is clear in the code that Sexual intercourse by a man with his wife is no case rape. If
she was not married, she had no right to give her consent to any person whatsoever, the fact that she
gave it was sufficient to acquit a man.
In the rape cases the courts usually used to take into consideration of the details of the victims
profile such as her age, character and past history in determining the severity of punishment and to
obtain justice. Rape as a social phenomenon, where socio-cultural factors, gender roles, socialisation
and social stratification reflects the meaning, definitions and impact, the rape laws reflects undesirable
statuesquo and on-equalitarian system of justice when arguing that poor woman is less sensitive
because she is less able to protect. Women of the low caste in India, whose economic status was as
low as their social status, did not find it easy to evade assaults on them by men of more powerful
social groups. Consent is relevant to rape and if the woman’s consent be proved, then there is no
rap Women as considered capable of giving her consent at very young age and high caste woman’s
violations by low caste men as the most heinous rapes, requiring strictest punishment. While drafting
the sections of rape, abduction, the British law commissioners had assumed Indian morality to the
principles professed by upper caste men.