SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

Addararachchi 439 the court considered the issue of consent. The court stated that in cases
where there are opposing contentions on the presence of consent before sexual intercourse, it
becomes a matter of inference to be drawn from prior and contemporaneous acts and other
attendant circumstances to decide whether consent did exist. The court noted that there was
an absence of injuries on the female, that a doctor had testified that she was still a virgin and
that there was reason to doubt her creditworthiness based on her conduct subsequent to the
alleged incident, when she met a friend and described an interaction with the accused without
mentioning the incident of rape. In Piyasena et al. v. The Attorney General 440 an 18-year old
female was abducted and gang raped by three men, three times each, once in her own house
and two more times elsewhere in the course of a day. The court considered whether these
were each separate acts of rape each forming distinct offences by each of the accused or
constituted a continuing incident, which should be subject one charge of rape against each of
the accused. The court held that they were “a series of acts in one continuing transaction”
and that it would be fair to bring a single charge against each accused for one activity even
though that activity may involve several acts.
Sexual violence in India is addressed by provisions of the Indian Penal Code, 1860. The
Protection of Women from Domestic Violence Act, 2005 441 also covers the issue of sexual
abuse although it is applicable only to women in domestic relationships.
Possibly the most commonly used provision to address sexual violence in the Indian Penal
Code is Section 375. This provision defines the offence of rape as sexual intercourse by a
man with a woman against her will, without her consent, with her consent but when such is
obtained under threat of hurt or death, through fraud by making her believe that the man is
her lawful husband, or in circumstances where the woman gives consent due to unsoundness
of mind, intoxication etc. The provision sets the age of consent to sexual intercourse at 16.
Section 376 of the Indian Penal Code provides punishment for the offence of rape. As Section
375 is limited to penile-vaginal penetration, rape as described in Section 375 is a genderspecific
offence where only a male can be a perpetrator and only a female can be a victim.
Section 377 of the Indian Penal Code punishes ‘carnal intercourse against the order of
nature’. 442 In the context of the limitations of Section 375, this provision is used to penalize
acts of rape that are not penile-vaginal such as non-consensual oral, anal or object rape; sex
where penetration takes place and do not fall under the rubric of Section 375 443 , such as cases
of child abuse, which do not meet the definitional requirements of Section 375.
Indian courts have entertained a host of cases in relation to rape, some of which are worth
traversing for the purposes of this paper. For instance, in Bodhisattwa v. Ms. Subhra
Chakraborty 444 the Supreme Court of India held "rape" to be an offence that was violative of
a person’s fundamental right to life guaranteed under Article 21 of the Constitution. The
court opined that:
439 2002. Citation not available, however, authors have access to full text of judgment.
440 1986. Citation not available, however, authors have access to full text of judgment.
441 Further discussion on India’s Protection of Women from Domestic Violence Act is in the preceding part of
this chapter.
442 For further discussion on Section 377 see Chapter 2 on Penalisation/ Regulation of Sexual Activities/
Sexuality
443 Brother John Antony v State 1992 Cr LJ 1352 (Mad)
444 AIR 1996 SC 922
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