The Karnataka High Court on Wednesday, March 23, upheld the application of the rape law to a husband who rapes his wife. The court upheld the framing of charges under section 376 (rape) of the Indian Penal Code against the victim’s husband. The court observed that the institution of marriage doesn’t confer “any special male privilege or a license for unleashing of a brutal beast,” LiveLaw reported. “If it is punishable to a man, it should be punishable to a man albeit, the man being a husband,” the court added.
Justice M Nagaprasanna, who was hearing the case, also criticised the archaic ideology in which the marital rape exception is based. "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," the order said.
The case pertained to a couple who had married in 2006, and whose relationship got strained after a few years. The woman filed a complaint in 2017, accusing her husband of domestic violence as well as of sexually abusing their daughter. An FIR was registered under sections 506, 498A, 323, and 377 and the POCSO Act. The above sections, along with section 376 (rape) and relevant sections of the POCSO Act were used in the chargesheet filed as well.
The court said that it was for the legislature to look into the issue and consider altering the existing exemption for marital rape. “This court is not pronouncing upon whether marital rape should be recognised as an offence or the exception be taken away by the legislature,” the High Court said, according to LiveLaw. However, it said that the exemption of a husband from committing assault or rape on his wife cannot be absolute.
#MARITALRAPE
— Live Law (@LiveLawIndia) March 23, 2022
Breaking: Karnataka High Court Upholds Framing Of Charges Under Section 376 IPC[Rape] Against Husband
"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”, Court said pic.twitter.com/zWUZeZ2nHL
The court observed that through this exemption, “[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.”
It should be noted that India is one of the few countries in the world that still has not criminalised marital rape. The debate was stirred once again earlier in January, when a bench in the Delhi High Court was hearing a batch of petitions challenging the marital rape exceptions in the Indian Penal Code. Section 375 of the IPC, which defines rape, stipulates that there are two exceptions to this rule: one, a medical procedure or intervention, and two, sexual intercourse between a man with his wife when she is over 18 years of age. The petitioners had wanted this exception to be struck down, and had argued that it violates the fundamental rights of married women such as those to equality, life with dignity and right to self expression.
In the context of the same, there was a lot of debate, including on social media, with many defenders of the marital rape exception arguing that striking it down would affect the “sanctity” and institution of marriage, and saying it will be ‘misused’. However, civil society workers as well as studies have often pointed out that there is only a minuscule number of rapes reported that turn out to be false, and more often than not, women do not report sexual violence, and continue to be discouraged to.
Lawyers and feminists batting for criminalising marital rape have argued that the exception is based in archaic and regressive ideas of women as property -- essentially saying that once a woman is married to a man, he claims ownership on her body -- something the Karnataka High Court has also recgonised in its order on Wednesday. The petitioners had contended that the marital rape exception is an anomaly, given that physical violence or killing the wife is criminalised, but raping her is not.
This is not the first time a court has recognised marital rape in India. In August 2021, a two-judge bench of the Kerala High Court had passed a landmark order upholding marital rape as grounds for divorce. “A husband's licentious disposition disregarding the autonomy of the wife is a marital rape, albeit such conduct cannot be penalised, it falls in the frame of physical and mental cruelty,” the court held in its order.