What is the difference between the essential ingredients of Section 375 and Section 493 IPC

Introduction

According to the 2022 National Crime Records Bureau (NCRB), there has been a 4 percent increase in registered crimes against women in India as compared to 2021. While the 2022 NCRB report shows 4,45,256 cases reported under crimes against women, in 2021, this number was 4,28,278. The vast majority of cases against women under various sections of the IPC were registered under subheads of 'Cruelty by Husband or His Relatives' (31.4 percent), followed by 'Kidnapping & Abduction of Women' (19.2 percent), 'Assault on Women with Intent to Outrage her Modesty' (18.7 percent), and 'Rape' (7.1 percent). [1]

In India, any crime is mainly included in The Indian Penal Code (IPC), 1860. Out of all its 511 sections, various sections protect Indian Women. The author will discuss and differentiate the two most important articles in this article. Those are-

1. Section 375 of IPC, 1860 is 'Rape'.

2. Section 493 of IPC, 1860 is 'Cohabitation caused by a man deceitfully inducing a belief of Lawful Marriage.'

1. Section 375 defines that a man can commit "Rape" if-

a) He inserts his penis to any extent into the vagina, mouth, urethra, or anus of a woman or force her to do so with him or any other person.

b) He inserts to any extent any part of the body or object other than the penis into the vagina, mouth, urethra, or anus of a woman or force her to do so with him or any other person.

c) If he manipulates any body part of the woman to penetrate the vagina, mouth, urethra, anus, or any body part of a woman or force her to do so with him or any other person.

d) If he applies his mouth to the vagina, mouth, urethra, or anus of a woman or force her to do so with him or any other person. [2]

To prove the acts above of a person as a Rape it should fall under certain below-mentioned descriptions-

'1. Against the will of the Woman- "will" means the reasoning power of mind that helps to decide whether to do or not to do any act. If any person commits sexual intercourse with a woman without her 'will' he will be punished. The Apex Court in'''''''''''State of Punjab v Gurmit Singh[3]''''''held that as the accused persons after abducting the prosecutrix subjected her to forcible sexual intercourse against her will it amounted to rape within section 375(1).

'2. Against the Consent of the Woman- "Consent is an act whereby a person voluntarily agrees to the proposal of someone". If any person commits sexual intercourse with a woman without her 'Consent' he will be punished. In '''''Queen v Flattery[4]''the prosecutrix was under the treatment of the accused doctor—the accused under the pretense of operating committed sexual intercourse with the girl. The court held that the girl agreed to a surgical operation that did not constitute consent for sexual intercourse. Thus, the accused was declared guilty.

'3. If the Consent of the Woman was acquired under fear of death or hurt to her and to anyone in whom she is interested then that is no Consent in Law-''''''If the accused obtains the consent of the woman to do sexual intercourse with him under fear of death or hurt that will not at all be considered as a consent in Law. Because the Law only accepts consent that is given freely and voluntarily without fear of death, hurt, or injury. In theState of Maharashtra v Prakash[5]''''a tribalwoman was forced into sexual intercourse by a police constable and businessman by beating her husband and threatening to put him behind bars. The Apex Court held that using actual force is not always necessary. Consent procured by threat and use of force is sufficient to prove the accused's guilt.

'4. ''''''If the Consent of the Woman was obtained under a misconception that the person is the husband of the woman it is not valid consent- if any woman consents to intercourse with a person by thinking that the person is her husband and later it turns out to be that the accused person has impersonated himself as the husband of the woman. Then the consent given by a woman cannot become free consent. In '''''R v Doe[6]the court of Crown Case Reserved of Ireland held that the accused had presented himself as the husband of the woman. So, consent given by her under deception cannot be considered free consent.

'5. If the Consent procured from a Woman who is of unsound mind or under the influence of intoxication, etc-'''''''''any woman who is suffering from any kind of mental disease or under the influence of intoxication is not in a fully conscious state to give their consent. So, any consent given in that state cannot be presumed as free and voluntary consent. In '''''Tulsidas Kanolkar v State of Goa[7]''the accused has taken the opportunity of the girl's unsoundness of mind and raped her the additional session judge has given him ten years of rigorous imprisonment and a fine of Rs 10,000. The High Court reduced the punishment to seven years but the Supreme Court upheld the punishment of Session Court.

6. 'If the Woman is under sixteen years of age her consent is not valid in Law-agirl is considered incapable of giving consent for sexual intercourse if she is under sixteen. In '''''Harpal Singh v State of Himachal Pradesh[8]'a fourteen-year-old'''girl was a willing party and she invited the accused to have sexual intercourse. The Apex Court held that even if the girl has consented to the intercourse. But, as she was under sixteen her consent is not valid as per law. So, the act will be regarded as rape.

7. 'If the Woman is unable to communicate consent'- when an act of sexual intercourse is being performed with a woman who was unable to give her consent at the time of intercourse, that act will be considered rape'.'

2. Section 493 defines that –

Any person who deceitfully makes any woman believe that he is her lawful husband which is not true and cohabits or has sexual intercourse with the woman based on that deceitful statement made by him. That person is liable for an imprisonment that may extend to ten years and shall also be liable to a fine.

To constitute an offence under section 493 of IPC some essential ingredients need to be fulfilled-

a) The man has an intention to deceit the woman

b) The woman fully believed that she was lawfully married to that man

c) The woman has cohabited or has sexual intercourse with that man.[9]

In '''''Raghunath Padhy v State of Orissa[10]'a'''married Brahmin boy of 22 years of age has entered into some sort of marriage with a Brahmin widow. They have started living as husband and wife near the boy's house. After some time when the girl became pregnant, the boy deserted her and went back to her first wife. The Orissa High Court ruled that the boy is not accused under section 493 he has merely breached the promise to register the marriage. From the inception, he does not have the intention to fraud with the woman. So, he can only be liable for breach of promise but there is no sufficient evidence to make him criminally liable.

3. 'What are the differences between section 375 and section 493 of IPC'

Before delving into the difference between these two sections I want to clarify that some people may find similarities between sec375(4) and sec 493

Sec 375(4) talks about when consent was taken for sexual intercourse under the misconception of a woman becoming her husband. Sec 493 talks about when a person deceitfully induces a woman to believe that he is her lawful husband and cohabits with her.

After looking at both the sections we can say that the word impersonisation is creating the difference. Sec 375(4) will only be applicable when a person impersonates the woman's husband and as a result, she consensually cohabits with him.

'Differences'

Differences between both sections can be found in the essential ingredients. Those are-

· Under sec 375(1) when a man against the will of a woman has intercourse with her that can constitute rape. But under sec493 both the person cohabits consensually.

· Under sec 375(2) a man sometimes cohabits or does sexual intercourse with a woman without her consent designates the act as rape. But under sec 493 consent is taken but deceitfully.

· Under sec 375(3) a man takes the consent of a woman for sexual intercourse by putting her or any of the person in whom she is interested in fear of death and heart. But under sec 493 there is no mention of coercion to take the woman's consent.

· Under sec 375(7) if any person performs sexual intercourse with any woman who is unable to give consent at that time that will constitute rape. But under sec 493 the intercourse happens consensually because the woman thinks that she is lawfully married to the man.

· Under sec 493 the man can make the girl believe that he is of the same race or creed as the girl himself and induce her to constitute marriage with him and as a consequence start to cohabit with him, where lawfully they are not married. But under sec 375 race, creed or marriage is not important.

Conclusion

After comprehensively presenting both sections I would like to conclude this article by saying that Section 375 provides various scenarios under which a woman can get justice if they have fallen victim to a crime without their consent. Section 493 punishes a man when he deceitfully takes the will of the woman for cohabitation. But one flaw I can find in bothsectionsis that these sections only provide relief to the women as our society is on a path of modernization we need to make more laws that will be gender friendly. So, that larger sections of our society can get justice easily.

[1]< ref > Bismee Taskin, NCRB data shows 4% rise in crimes against women in India. UP has most rape, POCSO cases, The Print, (DEC. 4, 2023) < / ref >

[2]< ref > THE INDIAN PENAL CODE, 1860, No. 45, Acts of Parliament, 1860 (INDIA) s. 375. < / ref >

[3]< ref > State of Punjab v Gurmit Singh AIR 1996 (SC 1393) < / ref >

[4]< ref > Queen v Flattery, 1877 (QBD 410). < / ref >

[5]< ref > State of Maharashtra v Prakash AIR 1992 (SC 1275) < / ref >

[6]< ref > R v Doe (1984) 15 Cox CC 579. < / ref >

[7] < ref > Tulshidas Kanolkar v State of Goa AIR 2003 8 (SCC 590) < / ref >

[8]< ref > Harpal Singh v State of Himachal Pradesh AIR 1981 (SC 361) < / ref >

[9] < ref > THE INDIAN PENAL CODE, 1860, No. 45, Acts of Parliament, 1860 (INDIA) s. 493. < / ref >

[10]< ref > Raghunath Padhy v State of Orissa AIR 1957 (Ori 198) < / ref >