Indian Penal Code, 1860
Section 376AB
repealedPunishment for rape on woman under twelve years of age
Whoever, commits rape on a woman under twelve years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and with fine or with death:1 Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided further that any fine imposed under this section shall be paid to the victim.
Why this exists
This section was introduced through the Criminal Law (Amendment) Act, 2018, following widespread national outrage over horrific cases of rape of very young children, including the Kathua case, and was intended to send a strong deterrent message by allowing capital punishment for this specific category of child rape. It reflects a policy choice to impose the harshest penalties for sexual violence against the very youngest victims. The Bharatiya Nyaya Sanhita, 2023 retains a comparable provision for rape of a child under twelve.
How courts read it
Courts, including the Supreme Court, have upheld the constitutional validity of this section's death penalty provision while cautioning that capital punishment should be reserved for the rarest of rare cases even within this category, requiring careful individualized sentencing analysis rather than automatic imposition of death for every case falling under the section.
Common misconceptions
- Myth: Every conviction under this section automatically results in a death sentence.
Fact: Courts have clarified that the death penalty remains an option, not a mandatory outcome, and must be reserved for the rarest of rare cases after careful judicial consideration.