‘Marital rape exception not absolute’ — Karnataka HC refuses to quash rape case against husband
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‘Marital rape exception not absolute’ — Karnataka HC refuses to quash rape case against husband

Man accused of keeping wife as ‘sex slave, assaulting her brutally’. HC observation comes at a time when Delhi HC has reserved judgment on petitions against IPC’s marital rape exception.

   
File photo of Karnataka High Court | Commons

File photo of Karnataka High Court | Commons

New Delhi: A single-judge bench of the Karnataka High Court Wednesday refused to quash a rape case against a man who is facing charges of keeping his wife as a “sex slave” and “sexually assaulting her brutally”.

Rejecting the man’s defence that he was legally exempt from rape charges, Justice M. Nagaprasanna said, “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 licence for the commission of a crime against society”.

Under Exception 2 to Section 375 of the Indian Penal Code (IPC) a man cannot be charged for the rape of his wife.

This significant judgment comes at a time when the debate around marital rape has been resurrected after the Delhi High Court last month resumed hearing arguments on a set of petitions demanding that Exception 2 be declared unconstitutional.


Also read: Delhi HC reserves judgment on IPC marital rape exception, rejects govt’s plea for deferment


‘Exception based on medieval law’  

The complaint was filed against the husband on 21 March, 2017. Besides charging him for threatening, dowry harassment and causing grievous injury, the wife also complained of unnatural sex. He was also booked under the Protection of Children from Sexual Offences Act, 2012 (POCSO).

In the initial chargesheet, the man was accused of rape. Later, a special court framed charges against the petitioner in August 2018 under all the sections that were mentioned in the chargesheet. After this, the man approached the high court to quash the FIR.

Justice Nagaprasanna observed that the chargesheet gave “graphic details of the demonic lust of accused number one (man), who even according to the investigation has had unnatural sex, every time he has had sexual intercourse, torturing or abusing the wife, or threatening to beat the daughter, all for the satisfaction of the gory carnal lust.”

During the hearing, Justice Nagaprasanna said that Exception 2 to Section 375 of the IPC was guided by the laws that existed in all the countries where the British left their footprint. “It was founded and remained on the premise of a contract in the medieval law that husbands wielded their power over their wives,” the court noted.


Also read: ‘Have 50 nations got it wrong?’ Delhi HC asks as it looks into IPC exception for marital rape


Constitutional guarantee

Justice Nagaprasanna said that India is governed by the Constitution, which treats a woman and man as equals and considers marriage to be an association of equals.

The Constitution, he added, guarantees the right to live with dignity, personal liberty, bodily integrity, sexual autonomy, and the rights to reproductive choices, privacy, and free speech and expression. Rights under the Constitution are equal, and so is protection, the judge said.

Noting that marital rape is illegal in many foreign jurisdictions, the judge refused to accept the submission that the institution of marriage protects a husband from prosecution for what would be an offence if committed by an unmarried man. Such an argument, he observed, was “sans countenance.”


Also read: 3.9% Indian women who were ever married reported sexual violence from spouse, 9.7% in Karnataka


Centre’s stand still unclear

The bench appealed to the legislature to pay heed to instances of marital rape, and said, “This court is not pronouncing upon whether marital rape should be recognised as an offence or that 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.”

On 21 February the Delhi HC bench comprising Justice Rajiv Shakdher and Justice C. Hari Shankar had reserved its verdict on a batch of petitions challenging the constitutional validity of the exception for marital rape in the IPC.

The Bharatiya Janata Party-led central government had asked the Delhi HC to wait until the commission set up by the former gives its report potential amendments to be made in the colonial-era IPC. According to the Centre’s statement, this commission is considering making changes in Section 375.

However, the Centre has taken no absolute stand on the petitions, leaving the court miffed with its approach. The government was also unable to give a timeline making clear when the commission’s report will be ready, prompting the bench to reserve its judgment.

(Edited by Manoj Ramachandran)


Also read: Marital rape cannot be tolerated under the garb of upholding the institution of marriage