RAPE: WITH REFERENCE TO NEPALESE LEGAL PROVISIONS

Neetij Rai 

Abstract
Law may be defined as a system of rules, enforced through a set of institutions, used as an
instrument to regulate society. Law guides the human conduct and aims to maintain peace and
security in the society. Basically law acts as an agent to social change, social control and
prevention of crime.
Crime is an inherent attribute of every society. It exists in every society whether in small or large
degree. Rape is also one of the crime which seems to be most brutal, barbaric and condemnable.
Law through out the world have criminalized this act and the Nepalese legal provision is also no
exception.

An Introduction to Rape:
Rape may be defined as an unlawful sexual activity (esp. intercourse) with a person (usu. a
female) without consent and usually by force of threat of injury.

Rape is an assault by a person involving sexual intercourse with another person without that
person's consent.1

Rape is sexual intercourse (vaginal or anal) with a woman or another man without their consent,
as a result of physical force or threats, or because the person was unconscious or asleep, or
because consent as to the nature of the act was obtained through fraud. It is also rape if the
person is mentally incapable of understanding what is being consenting to.2


Student, Kathmandu School of Law, L.L.B. 2nd Year
1
[Link] visited on 27th March, 2010.
2
Oxford dictionary of [Link], p.208
Act of sexual intercourse with an individual without his or her consent, through force or the
threat of force.3

Rape is defined as the having of unlawful carnal knowledge by a man of a woman, forcibly or
against her will.4

Rape includes unlawful sexual intercourse without consent after the perpetrator has substantially
impaired his victim by administering, without the victim’s knowledge or consent, or drugs or
intoxication for the purpose of preventing résistance. It may include sexual intercourse with a
person who is unconscious. Marital status is now usu. irrelevant and sometimes so is the
gender.5
The legal definition of rape has changed substantially since the late 20th century. The traditional
definition was narrow with respect to both gender and age; rape was an act of sexual intercourse
by a man with a woman against her will. As rape is now understood, a rapist or a victim may be
an adult of either gender or a child. Although rape can occur in same-sex intercourse, it is most
often committed by a male against a female.

Rape is the most heinous and inhumane offence. It is the barbarism of the worst order. Rape
shatters the life of the victim and compels to bear the agony throughout the life.

A rape victim usually suffers from,

i) Deep depression
ii) A feeling of impression
iii) Submissiveness
iv) Hatred for the male sex

3
rape." Encyclopædia Britannica. Encyclopædia Britannica 2009 Student and Home Edition.
Chicago: Encyclopædia Britannica, 2009.

4
William s. Anderson, Ballentine’s Law Dictionary, 3rd edi., Lawyers Cooperative Publishing Company,
Sanfransisco, 1969, p. 1054.
5
Bryan A. Garner, black’s law dictionary, 7th edi. P.12
The depression may manifest in the form of,
i) The lack of will to live
ii) Suicidal tendencies
iii) Fear of conception6

Legal Provisions in Nepal:

The legal provisions on rape is guided by Muluki Ain (National Code) 2020, 12th amendment.
The chapter ‘rape’ defines and states punishment for rape.
Definition:
A person is liable for the offence of rape if he procures sexual intercourse with or without the
consent of women under 16 and without the consent of women above 16.
Explanation:
a. Consent obtained by threat, fear, undue influence, fraud, abducting may not be termed as
consent.
b. Consent obtained when one is not in consciousness may not be termed as consent.
c. Even if there is slight penetration, then also it may be termed as rape.7

The following punishment is inflicted if a person commits the offence of rape:

Age of Victim:
 If the victim is below 10, the perpetrator is liable for 10 to 15 years of imprisonment.
 If the victim is between 10 to 14, the perpetrator is liable for 8 to 10 years of
imprisonment.
 If the victim is between 14 to 16, the perpetrator is liable for 6 to 10 years of
imprisonment.
 If the victim is between 16 to 20, the perpetrator is liable for 5 to 8 years of
imprisonment.
 If the victim is 20 or above the perpetrator is liable for 5 to 7 years of imprisonment.8

6
R. Dayal ,Commentary on Sexual Offences with Special Reference to Law on Rape, Premier Publishing Co.,
Allabadh,1999,p. 1
7
Muluki ain, 2020, chapter on Rape, sec. 1.
8
Ibid, sec. 3
Marital Rape:
It is a husband’s sexual intercourse with his wife by force or without her consent.9
 If a husband rapes his wife, the husband is liable for 3 to 6 months of imprisonment.10

Rape with Family Members or Relatives:

 If a person commits rape with woman with prohibited degree ( incestuous relationship),
he is liable to the same extent as the age factor of the victim prescribes additionally to the
punishment prescribed in the chapter on incest of Muluki Ain. however in the case of life
imprisonment, no additional punishment is inflicted from the chapter on rape.11

Gang Rape and Rape with Pregnant and Helpless:

Gang rape, or mass rape, (also known as 'Gang Banging') occurs when a group of people
participate in the rape of a single victim.12
 If a person is involved in gang rape or if a person rapes pregnant, helpless woman then
he is liable to the same extent as the age factor of victim prescribes, additionally with 5
years of imprisonment.13

Rape by HIV (+) ve Person:

 If a person [ HIV(+) ve] commits rape, then he is liable to the same extent as age factor of
victim prescribes, additionally with 1 year of imprisonment.14

Unnatural Sexual Activity with Minor:

 If a person commits unnatural sexual activity with minor, he is liable to the same extent
as the age factor of victim prescribes, additionally with 1 year of imprisonment. And also
the minor is to be compensated evaluating the age and impact of the act.15

9
Bryan A. Garner.,(n5), p. 1267
10
ibid,(n7) sec.3.
11
Ibid, sec. 2
12
[Link] visited on, 28th march, 2010
13
Muluki Ain, (n7), sec. 3a
14
Ibid, sec 3b
15
Ibid, sec. 91
Abettor:
Abettor is the one who instigates, encourages or assists another to commit an offence.16
 Abettors who knowingly help the perpetrator are liable up to 3 years of imprisonment if
the victim is above 16 years and if the victim is under 16, the amount of punishment is
doubled.17

Attempt:
An overt act that is done with the intent to commit crime but that falls short of completing the
crime.18
 A person guilty of attempt is liable to half of punishment than what is prescribed for the
full offence.19

Inciter:
 Inciter is liable to half of the punishment than what is prescribed for the full offence if
offence takes place as per his order.20

Some Special Legal Provisions:

The chapter on rape to some extent has analyzed the situation of the offence from victim’s
perspective also. There are some special procedures prescribed by law in respect to the victim of
rape.
 The investigation must be conducted where possible by a policewoman, if not than by
policeman in presence of woman social worker.21
 The hearing must take place in the camera court. Only concerned parties and other
persons permitted by court are allowed to be present in hearing.22
 It is cognizable offence and the case must be filed within 35 days of incidence. 23

16
[Link] , visited on 28th march, 2010.
17
Ibid, (n13), sec.4.
18
Bryan A. Garner. (n5), p.123
19
Ibid, (n13), sec.5
20
Muluki ain, (n7), sec. 6.
21
Ibid, sec. 10a.
22
Ibid, sec, 10b.
23
Ibid, sec 11.
  The woman is entitled to get compensation from the perpetrator as per the nature of loss
she has beared. Even if she is dead, her minor children, if any, are entitled to get
compensation.24
 A rape victim has right to abort if she conceives during the incidence.
 Any person who rapes or cause to rape with intention to inherit her property is not
entitled to get her inheritance.25

Defense of Chastity:
A rape victim women has right to defend her chastity against the assailant. In the course of the
defense she may use reasonable force against him. Even death ensues in the incident, she is not
liable for the death. The right attributed by law extends up to 1 hour of

incidence. If she kills after 1 hour she is liable up to 10 years of imprisonment or up to R.S. 5000
fine.26

Analysis and Conclusion:

Analysis:
Rape is in fact the most condemnable, barbaric, torturous, heinous and unique crime. Unique in
the sense that its definitions is dynamic and ever changing and the perpetrator and victim both do
not seem to have any age limit. The age of victims range from 6 to 70 years old.27 Compared to
other crime it is more severe as it remarks a deep impression in the life of the victim. Rape is not
just a crime against the person but a crime against society. It destroys the entire psychology of a
woman and pushes her into deeper emotional crisis. Only by her sheer will power she

24
Ibid, sec. 10.
25
Ibid, sec. 9.
26
Muluki Ain, (n7) Sec. 8.
27
[Link]/Docs/insec_sexual_violence_0109.pdf visited on 27th March, 2010.
rehabilitates herself in the society which on coming to know of the rape, looks down upon her on
contempt.
The legal provision addressing rape in Nepal is Muluki Ain, 2020(National Code). After 11th
amendment it has tried to address all the forms of rape. The concept of marital rape,
compensation to victim, in camera hearing is commendable. However, the chapter still needs
some more clearance on the definition of rape itself as no it still denotes rape as an act done by
men to women while provision regarding same sex rape and rape by women to men now needs
to be incorporated. There should be clear provisions addressing the resettlement of victim with
dignity in the society.

Conclusion:
Rape, being the most inhumane but less publicized crime (publicized in the sense that the rape
victims do not file case due to fear of stigmatization) is of much concern for legal fraternity. In
fact, law alone will not do. The moral regeneration of the society is of paramount importance
.Unless community attitudes change, women will continue to suffer sexual abuse, even at the
hands of their partners and within their homes. Only changing the stigmatization that women
suffer after a rape, more case may be reported and victims may seek redress. Hence, to combat
the menace of rape both sufficient legal provisions and a wider social movement of all the people
is needed.