Wednesday, March 17, 2010

RAPE TO SEXUAL ASSAULT....

The government has decided to amend the Rape section of Indian Penal code, now the term “Rape” will soon be replaced by “Sexual Assault”. This will broaden the definition of section 375 of IPC. It is an effort to construct gender equality and make it more neutral as a crime against human body. Until now and till the bill get passed, rape is an offence which can only be done by man, not a woman, so the sexual assault done by woman are not covered under this section. In actually there is no section which covers the assaults by a woman. But by the new definition of rape which would be passed in next bill, the definition will be broader and covers all the sexual crimes inflicted on women, men and children. It not only covers the act committed by men but of women as well, the new section can be slapped on accused of any gender that has performed the act.
Moreover, a hitherto in section 375 a penetration is sufficient to constitute the offence of rape, but with the proposed replacement coming in, it will also cover crimes like Sodomy, fingering, inserting any foreign object and other similar offences which do not cover under the present definition of Rape under section 375 of Indian Penal Code.
In the judgment ‘Smt Sudesh Jhaku v KCJ & Ors’ in 1998, the Delhi High Court was urged to interpret the term ‘Sexual Intercourse’ and ‘penetration’ used in Section 375 in such a way as to bring within their ambit not only penile-vaginal penetration but also penetration of any part of his body, like fingers or any foreign object like stick or bottle into bodily orifice of woman. The court ruled that ‘sexual intercourse’ and ‘penetration’ mean only the penile vaginal penetration. It held these terms cannot be interpreted to bring within their fold the vaginal penetration by fingers or any other object. Dismissing the petition, the Delhi High court held that it is for the legislature and not for the judiciary to give wider interpretation to the words ‘sexual intercourse’ and ‘penetration’.
In 2004, Sakshi, a voluntary organization providing legal, medical and psychological help to women, through a PIL, urged the Supreme Court to issue a writ in the nature of declaration that ‘Sexual Intercourse’ as contained in section 375 of the IPC includes all forms of Penetration (penile-vaginal, penile-anal, penile-oral, finger-vaginal, finger-anal and object vaginal). But with a view to avoiding chaos and confusion in the law dealing with rape and in the interest of society at large, the apex court also declined to alter the definition of ‘Rape’ through judicial interpretation.
From these major judgments given by our judicial organ, the parliament now decided to prepare a draft for its amendment and give it a new meaning and interpretation. It has been said that the current mulling of bill is also because of the landmark judgment given by the Delhi High Court in decriminalizing sex between two consenting adults of same sex last year and to harmonize the provisions of law to prevent sexual crimes among homosexuals as well.
But as if section 375 would cover homosexuals as well in the ambit of sexual assault then what would section 377 stands for? It has been held in Naz foundation case that the Section 377 will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minor. Let see how government will interpret and make a use of these section for the betterment of large number of people.

5 comments:

陽明山花季 said...

how do u do?

MOHAMMED FARHAN KHAN said...

well its very kind of you,
I am fine dear ...and what about you ...

忠琬 said...

GOOD........................................

guddu said...

its a nice move i think..... wat do u say .... bcoz now it will stop injustice thru cases decided in confusion or wrong determination ....... like one of recent cases is priya patel's case where J. arijit pasayat has gvn absurd decision

MOHAMMED FARHAN KHAN said...

thanx dear,
actually what i have written in this article is not of any use, because recently i have seen amendment bill, it is somewhat different from it, they are not trying for gender equality, instead they broader the meaning of rape. Still it will not be committed by woman.
hope I will write another one on this ...and discuss the current bill ...which is on its way to become a law...