While terming marital rape exception as regressive and as violating Article 14 and would run counter to the principles of equality (para 25), the Karnataka High Court in a learned, laudable, landmark and latest judgment titled Hrishikesh Sahoo vs State of Karnataka in Writ Petition No. 48367 of 2018 cited in 2022 LiveLaw (Kar) 89 delivered as recently as on March 23, 2022 has held explicitly that husband raping his wife is amenable to the offence of rape (para 28) under Section 376 IPC. The Court has rejected a petition filed by a husband seeking to drop charges of rape under Section 376 of the Indian Penal Code, levelled against him by his wife. The Court thus 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.
To start with, this extremely commendable, cogent, composed and convincing judgment authored by a single Judge Bench comprising of Hon’ble Mr Justice M Nagaprasanna of Karnataka High Court sets the ball rolling by first and foremost setting straightaway the main agenda by mincing no words to state in para 1 that:
What falls for consideration in the subject writ petition is, Integrity and bodily freedom of a woman, the wife, being ravaged by the husband, whether, could be absolved and protected by a law that mandates equality of its application. What pervades the entire petition is, wanton lust, vicious appetite, depravity of senses, loathsome beast of passion, unbridled unleashing of carnal desire of demonish perversion. It is these that drove the complainant-wife to register a complaint against the husband for offences punishable, inter alia, under Sections 376 and 377 of the Indian Penal Code. Cognizance being taken against the husband for the rape of his wife, is what drives the accused-husband, to this Court.
While elaborating on the facts, the Bench then states in para 2 that:
FACTUAL EXPOSE’ as borne out from the pleadings are as follows:
Writ Petition No. 48367 OF 2018:
The petitioner- accused No.1 in Spl.C.C.No.356/2017 gets married to the complainant - Mrs.Bratati @ Pinky on 20.06.2006, at Bhuvaneshwar. The couple stayed at various parts of the nation and at the relevant point in time, he was working at Bangalore and have also a child born out of their wedlock. After few years of living together, relationship of the couple gets horribly strained. Many instances of physical and mental torture to the wife and the child led to the complainant-wife registering a complaint against the husband on 21.03.2017. The complaint becomes an FIR in Crime No.13/2017 for 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).
Truth be told, the Bench then points out in para 3 that:
The Police, after investigation, have 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 case is now registered as Spl.C.C.No.356/2017. The parents of the petitioner along with the petitioner were also charge sheeted as accused Nos.2 and 3 and have been discharged pursuant to an order passed by this Court in Crl.P.No.423/2018 disposed on 03.07.2018. Therefore, the trial is now to be conducted only against the petitioner-husband of the complainant.
In hindsight, the Bench then recalls in para 17 that:
Since the sheet anchor of the submission of the learned senior counsel is with regard to the exemption or exception of husband under Section 375 of the IPC, it is germane to notice Section 375 of the IPC from its inception. The genesis of Section 375 of the IPC and its exception has its roots in the Code propounded by Macaulay in 1837. It is Macaulay’s Code that becomes the basis for the Indian Penal Code of 1860, which governs the penal provisions even as on date with certain changes on certain occasions. 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. In the Victorian era women were denied the exercise of basic rights and liberties and had little autonomy over their choice. Their statuses were nothing beyond than that of materialistic choices and were treated as chattels.
In the present context, the Bench then points out in para 18 that:
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.
It would be germane to mention here that the Bench then discloses in para 19 that:
Close to eight score and three years, the need to tinker with Section 375 of the IPC did not arise. A fateful incident of a gang rape in the capital led to the Union Government constituting a Committee headed by Justice J.S. Verma, to suggest amendments dealing with sexual offences in the Code. The Committee, after prolonged deliberations, gave several recommendations for amendments to criminal law. One such was concerning ‘Marital Rape’. The observations and recommendations of the Committee that are germane to be noticed are as follows:
15. The Committee is conscious of the recommendations in respect of India made by the UN Committee on the Elimination of Discrimination against Women (CEDAW Committee) in February 2007. The CEDAW Committee has recommended that the country should widen the definition of rape in its Penal Code to reflect the realities of sexual abuse experienced by women and to remove the exception of marital rape from the definition of rape…..
72. The exemption for marital rape stems from a long out-dated notion of marriage which regarded wives as no more than the property of their husbands. According to the common law of coverture, a wife was deemed to have consented at the time of the marriage to have intercourse with her husband at his whim. Moreover, this consent could not be revoked. As far back as 1736, Sir Matthew Hale declared: ‘The husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband which she cannot retract’.
73. This immunity has now been withdrawn in most major jurisdictions. In England and Wales, the House of Lords held in 1991 that the status of married women had changed beyond all recognition since Hale set out his proposition. Most importantly, Lord Keith, speaking for the Court, declared, ‘marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband.’
74. Our view is supported by the judgment of the European Commission of Human Rights in C.R. v UK, which endorsed the conclusion that a rapist remains a rapist regardless of his relationship with the victim. Importantly, it acknowledged that this change in the common law was in accordance with the fundamental objectives of the Convention on Human Rights, the very essence of which is respect for human rights, dignity and freedom. This was given statutory recognition in the Criminal Justice and Public Order Act 1994.
75. We find that the same is true in Canada, South Africa and Australia. In Canada, the provisions in the Criminal Code, which denied criminal liability for marital rape, were repealed in 1983. It is now a crime in Canada for a husband to rape his wife. South Africa criminalised marital rape in 1993, reversing the common law principle that a husband could not be found guilty of raping his wife. Section 5 of the Prevention of Family Violence Act 1993 provides: ‘Notwithstanding anything to the contrary contained in any law or in the common law, a husband may be convicted of the rape of his wife.’ In Australia, the common law ‘marital rape immunity’ was legislatively abolished in all jurisdictions from 1976. In 1991, the Australian High Court had no doubt that: ‘if it was ever the common law that by marriage a wife gave irrevocable consent to sexual intercourse by her husband, it is no longer the common law.’ According to Justice Brennan (as he then was): ‘The common law fiction has always been offensive to human dignity and incompatible with the legal status of a spouse.’
76. These jurisdictions have also gone further and recognised that consent should not be implied by the relationship between the accused and the complainant in any event. In the Canadian 2011 Supreme Court decision in R v. J.A., Chief Justice McLachlin emphasised that the relationship between the accused and the complainant ‘does not change the nature of the inquiry into whether the complaint consented’ to the sexual activity. The defendant cannot argue that the complainant’s consent was implied by the relationship between the accused and the complainant. In South Africa, the 2007 Criminal Law (Sexual Offences and Related Matters) Amendment Act (‘Sexual Offences Act’) provides, at s. 56 (1), that a marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation.
77. Even when marital rape is recognised as a crime, there is a risk that judges might regard marital rape as less serious than other forms of rape, requiring more lenient sentences, as happened in South Africa. In response, the South African Criminal Law (Sentencing) Act of 2007 now provides that the relationship between the victim and the accused may not be regarded as a ‘substantial and compelling circumstance’ justifying a deviation from legislatively required minimum sentences for rape.
78. It is also important that the legal prohibition on marital rape is accompanied by changes in the attitudes of prosecutors, police officers and those in society more generally. For example, in South Africa, despite these legal developments, rates of marital rape remain shockingly high. A 2010 study suggests that 18.8% of women are raped by their partners on one or more occasion.
Rates of reporting and conviction also remain low, aggravated by the prevalent beliefs that marital rape is acceptable or is less serious than other types of rape. Changes in the law therefore need to be accompanied by widespread measures raising awareness of women’s rights to autonomy and physical integrity, regardless of marriage or other intimate relationship. This was underlined in Vertido v The Philippines, a recent Communication under the Optional Protocol of the Convention on the Elimination of Discrimination Against Women (CEDAW), where the CEDAW Committee emphasised the importance of appropriate training for judges, lawyers, law enforcement officers and medical personnel in understanding crimes of rape and other sexual offences in a gender-sensitive manner.
Recommendations
79. We, therefore, recommend that:
- The exception for marital rape be removed.
- The law ought to specify 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 relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity;
- The fact that the accused and victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape.
80. We must, at this stage, rely upon Prof. Sandra Freedman of the University of Oxford, who has submitted to the Committee that that training and awareness programmes should be provided to ensure that all levels of the criminal justice system and ordinary people are aware that marriage should not be regarded as extinguishing the legal or sexual autonomy of the wife. (Emphasis supplied)
The recommendations of the Committee were accepted by the Union Government partially and amendments were carried out. The present case concerns the amendment to Section 375 of the IPC.
Briefly stated, the Bench sagaciously points out in para 21 that:
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. 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. The Constitution recognizes and grants such equal status to woman as well.
In short, it must be noted that the Bench then states in para 23 that:
There are several other enactments which have been enacted post the Constitution with the sole objective of protection of woman or a girl child. The soul of these enactments are, protection of women and equal status to women. To mention just one here, Protection of Women from Domestic violence Act, 2005 - Domestic violence is undoubtedly a human rights issue and serious deterrent to development. The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995) have acknowledged this. The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (C E D A W) in it’s General Recommendation No. XII (1989) has recommended that State Parties should act to protect women against violence of any kind especially that occulting within the family.
Be it noted, the Bench then observes in para 24 that:
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 aforesaid provisions are quoted only as a metaphor to demonstrate equality without exception pervading through the entire spectrum of those provisions, the Constitution, the code and the enactments.
Notably, the Bench then mentions in para 25 that:
As observed hereinabove, 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. It is for this reason that several countries have made such acts of the husband penal by terming it marital rape or spousal rape.
We just cannot gloss over that the Bench then reveals in para 26 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.
Furthermore, the Bench then mentions in para 27 that:
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.
What I find most remarkable to read is that the Bench then clearly holds in para 28 that:
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. 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 last line is most commendable!
No less remarkable is what is then stated in para 29 that:
The submission of the learned senior 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, for the reason that 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.
It is worth mentioning that the Bench then does not refrain from remarking in para 30 that:
A perusal at the complaint afore-extracted and written communications (which cannot be extracted in the body of the order) would send a chilling effect on any human being reading the contents of it. 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. 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.
No doubt, Centre and law makers must read what is then stated in para 31 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 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. 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.
Commendably, the Bench then holds in para 32 that:
Every ingredient of rape is met with in the alleged complaint. If it were to be a common man, the allegation on the face of it be punishable under Section 376 of IPC, why not the husband-petitioner. It is for the petitioner to come out clean in the trial, if he is so much in the defensive of his acts. Interjecting the trial in the teeth of the aforesaid complaint and the charge being framed would become a travesty of justice.
No wonder, the Bench then adds in para 33 that:
Therefore, 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. Therefore, the point that has arisen for my consideration is held in favour of the prosecution and against the petitioner.
Finally and far most significantly, the Bench then holds in para 53 that:
The order impugned rejecting the discharge application of the petitioner is not even called in question in the case at hand. What is called in question is quashing of entire proceedings in Special C.C.No.41 of 2017 under the Act. Therefore, there is no warrant to interfere in the case at hand.
TO SUM UP:
- Charge framed against the husband for alleged offence punishable under Section 376 of the IPC for alleged rape of his wife, in the peculiar facts of this case, does not warrant any interference. It is a matter of trial.
- Other offences alleged against the petitioner, the ones punishable under Sections 498A, 354, 506 of the IPC are clearly brought out in the complaint and in the charge sheet. This is again a matter of trial.
- The prosecution, notwithstanding presumption against the accused under Sections 29 and 30 of the POCSO Act, has to prove foundational facts beyond all reasonable doubt.
- The charge framed by the Sessions Court is to be altered by inclusion of offence punishable under Section 377 of the IPC owing to peculiar facts of this case.
- The designated Court hearing cases relating to offences under the POCSO Act can try the offences under the IPC as well, in the facts of the case.
- Allegations against the petitioner-husband for offences punishable under the POCSO Act for alleged sexual acts on the daughter cannot be interfered with. It is yet again a matter of trial.
EPILOGUE:
Ergo, a parting observation in the facts and circumstances of the case may not be inapt. Ours is a nation governed by the Constitution. Article 14 of the Constitution of India pervades through the soul of every statute and every bead of decision making. There is no statute promulgated post the Constitution where there is no application of concept of equality as enshrined in Article 14 of the Constitution of India. The Constitution is not a statute, but is the fountain head of all statutes.
If the Constitution mandates equality, the statute ought to follow suit. 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. 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. For ages man donning the robes of a husband has used the wife as his chattel; butt 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.
This is in fact in public domain. A brutal act of sexual assault on the wife, against her consent, albeit by the husband, cannot but be termed to be a rape. 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. It is, therefore, imperative for the law makers to now hear the voices of silence.
In conclusion, our law makers must wake up now and act accordingly. Centre is already working on reforming our penal laws. It must amend the law in this direction as desired by the Karnataka High Court in this learned case so elegantly, eloquently and effectively. Centre and our law makers must read this entire judgment and act accordingly as they feel best to protect woman from being raped by none other than her own husband who is meant to protect her and nothing on earth can be more reprehensible than this! It must definitely insert necessary safeguards also so that it does not become a very potent and dangerous weapon to torment innocent men!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh
