By Shankar Raj*
The court declined to interfere with the charges framed against a husband for ‘marital rape’, despite an exception under Section 375 of IPC
Bengaluru: In a major ruling, the Karnataka High Court today upheld the framing of charges against a husband accused of raping his wife.
The court 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”.”
The court declined to interfere with the charges framed against a husband for ‘marital rape’, despite an exception under Section 375 of the Indian Penal Code, by a sessions court in the city, considering the peculiar facts and circumstances of the case filed by the wife.
“The charge framed against the husband for the alleged rape of his wife does not warrant any interference. 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-husband,” said Justice M Nagaprasanna while hearing the petition filed by the husband before the high court against the session’s court order.
The court also gave the green signal to the sessions court to try the offences alleged under the POSCO Act against the husband, based on the complaint filed by the wife, for alleged sexual assault of their daughter.
The court added: “The institution of marriage does not confer, cannot confer and should not be construed to confer, any special male privilege or a license for unleashing of a brutal beast.”
“Referring to the exception under Section 375 of IPC and considering such acts of the husband penal by terming it marital rape or spousal rape, the high court pointed out 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. The United Kingdom, from where the present Code largely draws from, has also removed the exception pursuant to a judgment rendered by the House of Lords in 1991. Therefore, the Code that was made by the rulers then, has itself abolished the exception given to husbands”
However, the court clarified that the order pertains to only framing of charges against the husband and should not be construed as to whether marital rape should be recognized as an offence.
“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,” the Court stated.
“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 37 of rape being framed upon the husband alleging rape on his wife,” the court added.
“Justice Verma Committee recommended deletion of the exception of marital rape. But the amendment only replaced the word ‘rape’ with ‘sexual assault’ in Section 375 of the IPC. Therefore, the situation that now emerges is equality pervades through the Constitution, but inequality exists in the Code qua – Exception-2 to Section 375 of the IPC”
“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 the Right to Equality. The Constitution recognises and grants such equal status to women as well,” the court added.
*Shankar Raj is former Editor of The New Indian Express, Karnataka and Kerala, and writes regularly on current affairs.
