In a landmark judgement, the Karnataka High Court said that marriage is not a licence for ‘unleashing a brutal beast’
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In a pivotal judgment regarding a case of marital rape, the Karnataka High Court on Wednesday rejected the petition filed by a husband seeking dismissal of pending rape charges against him.
His wife had lodged a complaint against him under Section 376 of the Indian Penal Code.
Also read: Delhi HC says marital rape exemption requires ‘serious consideration’: What you need to know
As reported by NDTV, the Karnataka High Court said, “The 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 licence 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.”
The high court order said, “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”.
A single-judge bench of Justice M Nagaprasanna further contended that any man 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 judge emphasised.
As per Live Law, the high court said that 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.”
The complainant registered a complaint against her husband for offences punishable, inter alia, under Sections 376 (rape) and 377 (unnatural offence) of IPC. The Special Court took cognisance of the case against the husband for raping his wife and framed charges against the petitioner for offences punishable under Sections 376, 498A and 506 of IPC along with others. Aggrieved by this, the accused husband moved the high court, Live Law said in a report.
The primary argument placed by Senior Advocate Hashmath Pasha appearing for the accused was that a husband was exempted under Section 375 of the IPC.
Therefore, the preliminary question before the Court was whether cognisance being taken against the husband for an offence punishable under Section 376 of IPC is tenable in law, as per Live Law.
As per NDTV, Karnataka High Court said it was not talking about whether marital rape should be recognised as an offence. It was for the legislature to consider it. “This court is concerned only with the charge of rape being framed upon the husband alleging rape on his wife.”
The case involves a woman who told the court that her husband had treated her like a sex slave right from the start of their marriage. Describing her husband as “inhuman”, she alleged that she had been forced to have unnatural sex, even in front of her daughter, by him.
What is marital rape?
The term marital rape (also referred to as ‘spousal rape’) refers to unwanted intercourse by a man on his wife obtained by force, threat of force or physical violence or when she is unable to give consent. The words ‘unwanted intercourse’ refers to all sorts of penetration (whether anal, vaginal or oral) perpetrated against her will or without her consent.
Marital rape in India
The definition of rape as per Section 375 of the Indian Penal Code (IPC) includes all forms of sexual assault involving non-consensual intercourse with a woman. However, Exception 2 to Section 375 exempts unwilling sexual intercourse between a husband and a wife over 15 years of age from Section 375’s definition of “rape” and thus immunises such acts from prosecution.
As per law, a wife is presumed to deliver perpetual consent to have sex with her husband after entering into marital relations.
India is one of 36 countries including Pakistan, Afghanistan, Bangladesh, Egypt, Algeria and Botswana that have not criminalised marital rape.
How countries have dealt with the issue
In 1932, Poland was the first to make a law explicitly making it a criminal offence.
Since the 1980s, many countries have legislatively abolished the marital rape immunity. These include South Africa, Ireland, Canada, the United States, New Zealand, Malaysia, Ghana, and Israel.
In the US, between 1970s and 1993, all 50 states made marital rape a crime. The Court of Appeals of New York struck down the marital exemption from their codes in 1984.
In 2002, Nepal also got rid of the marital rape exception after its Supreme Court held that it went against the constitutional right of equal protection and the right to privacy.
With inputs from agencies
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