Marital Rape : Supreme Court Refuses To Stay Karnataka HC Judgment Which Sustained Section 376 IPC Charges Against Husband On Wife's Rape Complaint

The High Court did not accept the husband's argument that the charge cannot be framed against him due to the exception to marital rape from the offence of rape as per Exception 2 to Section 375 of the Indian Penal Code. The Court observed that the exemption cannot be absolute.

"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"", the High Court had said.

It may be noted that the High 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.

"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.

The Court observed that the exemption to marital rape is "regressive" and would run counter to the principle of equality enshrined under Article 14 of the Constitution of India.

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".

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

Case Title: HRISHIKESH SAHOO And STATE OF KARNATAKA & Ors | SLP(Crl) 4063/2022