'Rape Is Rape Even If Committed By A Husband Against Wife': Gujarat High Court, Says Need To Break Silence Over Gender Violence

Disagreeing with the marital rape exception as provided under Section 375 of IPC (Exception 2), which exempts a husband from punishment if he commits sexual acts against the consent of his wife (being 18 or above in age), the Court noted that marital rape is illegal in 50 American States, 3 Australian States and many other countries.

A bench of Justice Divyesh A. Joshi further noted that the United Kingdom, which the Indian Penal Code largely draws from, has also removed the exception pursuant to a judgment rendered by the House of Lords in R v. R in the year 1991.

Therefore, the Court added that the Code that was made by the rulers then, themselves abolished the exception given to husbands.

For context, as per Section 375 of the Indian Penal Code (IPC), rape includes all forms of sexual assault involving non-consensual intercourse with a woman. However, under Exception 2 to Section 375. sexual intercourse between a husband and a wife aged over 15 years of age(which was read as 18 years in the case of Independent Thought vs UOI) does not constitute “rape” and thus prevents such acts from prosecution.

The court made these observations while denying bail to a woman (mother-in-law of the complainant) who has been accused of aiding, instigating and abetting the alleged commission of brutal sexual acts against the complainant in connivance with her husband (complainant's father-in-law) and Son (complainant's husband).

The facts in brief

As per the chargesheet filed by the Police after an investigation in the case, the accused (mother-in-law) and her husband (father-in-law) compelled their son to take nude videos and photographs of the complainant and share them in a WhatsApp group.

Further, the complaint also alleged that the father-in-law allegedly used to sexually assault the complainant.

The allegations are also to the effect that the father-in-law installed the C.C.T.V camera in the bedroom of the complainant and both (applicant-accused and the father-in-law) used to watch the lovemaking moments of her son and daughter-in-law on the TV screen in their bedroom.

The accused-applicant (mother-in-law) was allegedly also aware that his son used to upload such videos on a porn website and when the victim complained about the sexual assault meted out by her husband and father-in-law to the applicant-accused, she took the side of her son and husband and told the complainant to keep quiet.

It was alleged by the complainant that to earn money from a particular porn website, they had committed such a heinous act with her as they were in desperate need of money to save their hotel from being sold out by the other partners.

High Court's observations

Taking note of the allegations in the case against the applicant-accused, the Court, at the outset, observed that the applicant-accused, being a lady, had not done anything to save the integrity of another lady and by not preventing her husband and son from doing such acts, she has played an equal role that of the other two accused, i.e, the husband of the complainant and the father-in-law.”

In its order, the Court also emphasized that fundamental rights under Articles 14, 15, 19 and 21 which are the right to live with dignity, personal liberty, bodily integrity, sexual autonomy, right to reproductive choices, right to privacy, right to freedom of speech and expression apply to both, men and women.

Underscoring that gender violence is most often unseen and is shrouded in a culture of silence, the High Court said that this silence needs to be broken and in doing so, men, in comparison to women, have more duty and role to play in averting and combating violence against women

“The causes and factors of violence against women include entrenched unequal power equations between men and women that foster violence and its acceptability, aggravated by cultural and social norms, economic dependence, poverty and alcohol consumption, etc. In India, the culprits are often known to the woman; the social and economic "costs" of reporting such crimes are high. General economic dependence on family and fear of social ostracization act as significant disincentives for women to report any kind of sexual violence, abuse or abhorrent behaviour. Therefore, the actual incidence of violence against women in India is probably much higher than the data suggests, and women may continue to face hostility and have to remain in environments where they are subject to violence,” the Court further remarked.

The court also highlighted the spectrum of sexual violence, ranging from the most severe, such as rape with or without violence, to various other offenses under different laws which include behaviours like stalking, eve-teasing, verbal and physical assault, and harassment.

The Court stressed that social attitudes typically characterize these crimes as 'minor' offences and by doing so, such crimes are not only trivialised or normalized, rather they are even romanticized and therefore, invigorated in popular lore such as cinema.

These attitudes which indulgently view the crime through prisms such as “boys will be boys” and condone them, nevertheless have a lasting and pernicious effect on the survivors, the Court added.

Against the backdrop of these observations, coming to the facts of the case, the Court noted that the offences punishable under Sections 498A, 376, 354 and 506 of the IPC are all clearly spelt out in the complaint against the accused-applicant in the statements recorded during the investigation and the contents of the summary in the charge sheet.

The Court further added that various disputed questions of fact have to be thrashed out only in a full-fledged trial and hence, if the applicant has anything in her defense on the allegations, it is for her to put up such defense before the Sessions Court and come out clean in the trial.

Given this, the Court did not deem it fit to grant her bail.

In related news, while acquitting a husband of the charges under Section 377 IPC for allegedly committing an “unnatural offence” against his wife, the Allahabad High Court recently observed that protection of a person from marital rape continues in cases where his wife is of 18 years of age or more than that.

Read more here: 'Marital Rape No Offence If Wife Is 18 Or Above': Allahabad HC Endorses MP HC's View That Husband Not Liable U/S 377 IPC For Unnatural Sex

It may further be noted in May last year, a Division Bench of the Delhi High Court, comprising Justices Rajiv Shakdher and C Hari Shankar, delivered a split verdict on a batch of petitions challenging the exception provided to marital rape in the IPC. Justice Shakdher held that the exception is unconstitutional, while Justice Hari Shankar upheld its validity, saying the exception was “based on an intelligible differentia”. Since substantial questions of law were involved, the judges granted leave of appeal to the Supreme Court.

Now, a batch of petitions is listed before the Supreme Court including an appeal against a judgment by the Karnataka High Court that allowed the prosecution of a man for raping his wife.

LL Citation: 2023 LiveLaw (Guj) 200