Marital Rape Exception Regressive, Violates Article 14; Husband Not Ruler Of Wife's Body & Mind : Karnataka High Court

A single judge bench of Justice M Nagaprasanna said ,

"The Constitution, a fountainhead of all statutes 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."

"If a man, a husband, a man he is, can be exempted of allegation of commission of ingredients of Section 375 of the IPC, inequality percolates into such provision of law. Therefore, it would run counter to what is enshrined in Article 14 of the Constitution", the Court observed.

The Court further said: 

"All human beings under the Constitution are to be treated equal, be it a man, be it a woman and others. Any thought of inequality, in any provision of law, would fail the test of Article 14 of the Constitution. Woman and man being equal under the Constitution cannot be made unequal by Exception-2 to Section 375 of the IPC. It is for the law makers to ponder over existence of such inequalities in law".

It may be noted that the Court has not ruled on the constitutionality of Exemption 2 to Section 375 IPC. It may also be recalled that the Delhi High Court has recently reserved judgment on a batch of petitions challenging the exemption to marital rape.

Husband raping a woman amenable to punishment under Section 376 IPC

It added, "A man who is well acquainted with a woman performs all the ingredients as is found in pre or post amendment to Section 375 of the IPC, can be proceeded against for offences punishable under Section 376 of IPC. Therefore, a man sexually assaulting or raping a woman is amenable to punishment under Section 376 of IPC."

Junking the contention of the petitioners counsel that if the man is the husband, performing the very same acts as that of another man, he is exempted, the bench said "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".

Case Background:

The wife filed the complaint against the husband on 21.03.2017 with the police. Following which the an offences punishable under Sections 506, 498A, 323, 377 of the Indian Penal Code ('IPC' for short) and Section 10 of the Protection of Children from Sexual Offences Act, 2012 ('POCSO Act' for short).

The Police, after investigation, filed a charge sheet against the petitioner. While filing the charge sheet, the offences punishable under Sections 498A, 354, 376, 506 of the IPC and Sections 5(m) and (l) r/w Section 6 of the POCSO Act, 2012, are invoked.

The Special Court framed charges against the petitioner alone in terms of its order dated 10.08.2018, for offences punishable under Sections 376, 498A and 506 of IPC and Section 5(m) and (l) r/w Section 6 of the POCSO Act. It is at that juncture, the petitioner has knocked the doors of this Court in the subject criminal petition seeking the following prayers

Court findings:

The bench on going through the chargesheet said "The charge sheet filed by the Police after investigation (supra) also depicts graphic details of the demonish lust of accused No.1 who even according to the investigation has had unnatural sex; every time has sexual intercourse torturing or abusing the wife, or threatening to beat the daughter or beating the daughter, all for satisfaction of the gory carnal lust."

The bench took into account the genesis of Section 375 of the IPC and its exception and how its roots in the Code propounded by Macaulay in 1837, which became the basis for the Indian Penal Code of 1860, which governs the penal provisions even as on date with certain changes on certain occasions.

It said "Exception to Section 375 has existed in the IPC since the time of its enactment by the British in the year 1860. Exception-2 then was guided by the laws that were existent in all the countries where the British had their foot on. They were several decades ago. It was founded and remained on the premise of a contract in the medieval law that husbands wielded their power over their wives."

It then observed "Post Republic, India is governed by the Constitution. The Constitution treats woman equal to man and considers marriage as an association of equals. The Constitution does not in any sense depict the woman to be subordinate to a man. The Constitution guarantees fundamental rights under Articles 14, 15, 19 and 21 which are 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. Under the Constitution, the rights are equal; protection is also equal."

Referring to the amendment carried out in section 375, post the Nirbhaya case of 2013, the court said "The amended exception depicts intercourse by a man with his own wife, the wife not being under 15 years of age would not be a rape. The post amendment the exception adds the words 'sexual acts' by a man along with the words 'sexual intercourse'. The difference is inclusion of the word "or sexual acts". Therefore, the exception now is of sexual intercourse and other sexual acts by the husband stand exempted."

It added "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."

Further the court relied on Article 14, 15, 16, 21, 23, 39, 243D of the Constitution of India, various provisions related to protection of women as mentioned in the Indian Penal Code and also enactments like the Immoral Traffic (Prevention) Act, 1956. The National Commission for Women, Dowry Prohibition Act, 1961.

It said "On a coalesce of all the afore-said and afore-quoted Articles of the Constitution, the provisions of the IPC and specific Acts promulgated, what would unmistakably emerge is the rights of women, protection of women and their equal status to that of a man without exception. Therefore, women are equal in its true sense factually and legally."

The Court also noted that the Justice Verma committee had recommended the deletion of exemption for marital rape.

Marital Rape Illegal in other countries:

The court mentioned that Marital rape is illegal in 50 American States, 3 Australian States, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia and several others. In the United Kingdom, which the present 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 Code that was made by the rulers then, has itself abolished the exception given to husbands.

Inequality in Code:

The bench said "Justice Verma Committee (supra) also recommended for deletion of the exception of marital rape. But, the amendment came about was only replacing the word 'rape' with 'sexual assault' in Section 375 of IPC. Therefore, the situation now emerges is equality pervades through the Constitution, but inequality exists in the Code qua - Exception-2 to Section 375 of the IPC."

Husband Not Protected by Institution of Marriage:

The court also refused to accept the submission of the petitioners counsel that the husband is protected by the institution of marriage for any of his acts being performed, as is performed by a common man, again sans countenance.

The court said "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."

Charge framed under section 376 upheld

On going through the complaint afore-extracted and written communications, the bench said "The wife-the complainant, cries foul in no unmistakable terms that she is being brutally, sexually harassed keeping her as 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."

It added "In the teeth of the facts, as narrated in the complaint, 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."

Further the court observed "In the light of the ghastly allegations against the petitioner-husband in the complaint and several other communications, I find no error committed by the learned Sessions Judge in taking cognizance, framing the charge under Section 376 of the IPC and also rejecting the application to drop the said charge. If the allegation of rape is removed from the block of offences alleged, it would, in the peculiar facts of this case, be doing tremendous injustice to the complainant-wife and would amount to putting a premium on the carnal desires of the petitioner.

Court appeals to the Legislature:

The bench said "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.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."

It added "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."

"For ages man donning the robes of a husband has used the wife as his chattel; but his crude behavior notwithstanding his existence because of a woman. The age old thought and tradition that the husbands are the rulers of their wives, their body, mind and soul should be effaced. It is only on this archaic, regressive and preconceived notion, the cases of this kind are mushrooming in the nation. 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 impact on her. Such acts of husbands scar the soul of the wives", the Court observed. 

Case Title: HRISHIKESH SAHOO And STATE OF KARNATAKA

Case No: WRIT PETITION No.48367 OF 2018

Citation: 2022 LiveLaw (Kar) 89

Date of Order: 23RD DAY OF MARCH, 2022

Appearance: Senior Advocate HASHMATH PASHA, a/w advocate RANJAN KUMAR, P for petitioner

Advocate NAMITHA MAHESH B.G., AGA A/W SRI R.D.RENUKARADHYA, FOR R1

Advocate MADANAN PILLAI R FOR R2 A.D.RAMANANDA, FOR R3

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