Husband Raping A Wife Is Amenable To Punishment Under Section 376 IPC: Karnataka High Court On Marital Rape

The Karnataka High Court on Wednesday rejected a petition filed by a husband seeking to drop charges of rape pending against him under Section 376 of the Indian Penal Code after his wife filed a complaint against him. 

Justice M Nagaprasanna emphasised that a man who is well acquainted with a woman and performs all the ingredients as is found in pre or post amendment to Section 375 can be proceeded against for offences punishable under Section 376, thereby establishing that a man sexually assaulting or raping a woman is amenable to punishment under Section 376 of IPC.

"The contention of the learned senior counsel that if the man is the husband, performing the very same acts as that of another man, he is exempted. In my considered view, such an argument cannot be countenanced. A man is a man; an act is an act; rape is a rape, be it performed by a man the "husband" on the woman "wife"."

Further, it was held that the submission that a husband is protected by the institution of marriage for any of his acts being performed, as is performed by a common man was not proper.

"...institution of marriage does not confer, cannot confer and in my considered view, should not be construed to confer, any special male privilege or a license for unleashing of a brutal beast. If it is punishable to a man, it should be punishable to a man albeit, the man being a husband."

The Judge explained that the exemption of the husband on committal of such assault/rape, in the peculiar facts and circumstances of this case, cannot be absolute, as no exemption in law can be so absolute that it becomes a license for the commission of a crime against society. Therefore, it was established that a brutal act of sexual assault on the wife, against her consent, albeit by the husband, cannot but be termed to be a rape.

The judgment also suggested that the legislature consider this issue since such sexual assault by a husband on his wife will have grave consequences on the mental sheet of the wife, it has both psychological and physiological impacts on her.

"Though the four corners of marriage would not mean society, it is for the legislature to delve upon the issue and consider tinkering of the exemption. This Court is not pronouncing upon whether marital rape should be recognized as an offence or the exception be taken away by the legislature. It is for the legislature, on an analysis of manifold circumstances and ramifications to consider the aforesaid issue. This Court is concerned only with the charge of rape being framed upon the husband alleging rape on his wife."

It added that such acts of husbands scar the soul of the wives and that it was, therefore, imperative for the lawmakers to now "hear the voices of silence".

The complainant registered a complaint against her husband for offences punishable, inter alia, under Sections 376 (rape) and 377 (unnatural offence) of IPC. The Special Court took cognizance of the case against the husband for raping his wife and framed charges against the petitioner for offences punishable under Sections 376, 498A and 506 of IPC along with others.  Aggrieved by this, the accused husband moved the High Court. 

The primary argument placed by Senior AdvocateHashmath Pasha appearing for the accused was that a husband was exempted under Section 375 of the IPC.

Therefore, the preliminary question before the Court was whether cognizance being taken against the husband for an offence punishable under Section 376 of IPC is tenable in law.

Upon tracing the origins of the said Section, the Judge noted that its exception had its roots in the Code propounded by Macaulay in 1837. It was founded and remained on the premise of a contract in medieval law that husbands wielded their power over their wives who were treated as chattels. 

However, the Court observed, post-Republic, India has been governed by the Constitution which treats women as equal to men and considers marriage as an association of equals.

"The Constitution does not in any sense depict the woman to be subordinate to a man...Under the Constitution, the rights are equal; protection is also equal."

Further, it was recalled that the need to tinker with Section 375  did not arise until a fateful incident of gang rape occurred in the capital leading to the constitution of a Committee headed by Justice J.S.Verma, to suggest amendments dealing with sexual offences in the Code. This Committee had recommended that the exception for marital rape be removed while adding that a marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation.

The Judge then analysed the amendment brought to the Section in 2013 and found that the amended exception depicts intercourse by a man with his own wife would not be 'rape'. The post amendment exception adds the words 'sexual acts' by a man along with the words 'sexual intercourse'. Therefore, the exception exempted sexual intercourse and other sexual acts by the husband.

"Therefore, a woman being a woman is given certain status; a woman being a wife is given a different status.Likewise, a man being a man is punished for his acts; a man being a husband is exempted for his acts. It is this inequality that destroys the soul of the Constitution which is Right to Equality. "

Several provisions of the Constitution such as Articles 14, 15, 16, 21, 23, 39, 243D and 243T were pointed out as the prism that depicts constitutional spirit towards rights of its citizens, be it a man or a woman.

It was further noted that there are several other enactments enacted post the Constitution with the sole objective of protection of woman or a girl child. The soul of these enactments is the protection of women and equal status to women.

As such, it was concluded that the rights of women, protection of women and their equal status to that of a man exist without exception. Therefore, women are equal, in its true sense, factually and legally. 

The Judge also added that while the Constitution depicts equality, the Code practices discrimination.

"Under the Code every other man indulging in offences against woman is punished for those offences. But, when it comes to Section 375 of IPC the exception springs. In my considered view, the expression is not progressive but regressive, wherein a woman is treated as a subordinate to the husband, which concept abhors equality."

Moreover, the Court expressed that the contents of the woman's complaint would send a chill down the spine of anyone. The complainant submitted that she is being brutally, sexually harassed and that she was kept a sex slave for ages.

"The contents of the complaint are an outburst of tolerance of the wife of the brutal acts of the petitioner. It is akin to eruption of a dormant volcano. In the teeth of the facts, as narrated in the complaint, 50 in my considered view, no fault can be found with the learned Sessions Judge taking cognizance of the offences punishable under Section 376 of IPC and framing a charge to that effect."

Although it has been mentioned that the voluntary letters written by the wife and their daughter are so abhorrent that they cannot be reproduced in the order, the judgment has extracted certain ghastly details in the complaint that convey the misery of the complainant. 

The Court noted that the charge sheet filed by the Police after investigation also depicted graphic details of the demonish lust of the accused. 

The Court however clarified that it was not ruling on the constitutionality of Exception 2 to Section 375 IPC - which exempts marital rape from punishment. The Court said that no exemption can be absolute.

"The exemption of the husband on committal of such assault/rape, in the peculiar facts and circumstances of this case, cannot be absolute, as no exemption in law can be so absolute that it becomes a license for commission of crime against society", the Court said.

Additional Government Advocate Namitha Mahesh and Advocate A.D.Ramananda appeared for the respondents and Assistant Solicitor General of India Shanthi Bhushan represented the Central Government in the matter. 

Case Title: Hrishikesh Sahoo v. State of Karnataka & Ors.

Citation: 2022 LiveLaw (Kar) 89

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