New Delhi: In the latest conversation around criminalising marital rape in India, the Gujarat High Court has called a “rape a rape” in unequivocal terms even if the perpetrator is a 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’,” observed Justice Divyesh A. Joshi, dismissing a bail plea filed by a woman, who was booked along with her husband and son on charges including ‘outraging modesty’, cruelty and criminal intimidation of her daughter-in-law, with the son also booked for rape.
According to the order, the applicant-accused was booked in the case on 13 August this year and arrested the same day.
In its judgment, the high court pointed out that the country the Indian Penal Code (IPC) largely draws from, the UK, has itself removed the exemption to husbands.
“The United Kingdom…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. Therefore, a man sexually assaulting or raping a woman is amenable to punishment under Section 376 (rape) of the IPC,” the court said.
Section 375 of the IPC exempts the husband from the definition of rape. “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape,” it states. Section 376 outlines the punishment for rape.
Last year, the Supreme Court had stayed a Karnataka High Court order which held that a man could be tried for raping his wife despite the immunity provided to husbands under IPC section 375.
In this case, the Karnataka government had also supported the prosecution of the husband under marital rape charges, filing an affidavit in the apex court.
There are currently a batch of petitions before the Supreme Court that have challenged the marital rape exception. While the central government is yet to file an affidavit in the matter to bring on record its final stand, it told the SC in September that the issue of criminalising marital rape would have “social ramifications”.
The Gujarat High Court’s strong observations on marital rape come in this backdrop.
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‘Silence needs to be broken’
In his 8 December order, Justice Joshi pointed out that marital rape was illegal in 50 US states, three Australian states, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia and several others countries.
He stated that in most cases of such nature, the usual thinking is that “if the man is the husband, performing the very same acts as that of another man, he is exempted”.
“In my considered view, the same 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’,” he emphasised.
The court further opined how gender violence is most often unseen and shrouded in a culture of silence, adding that the causes and factors of violence against women include entrenched unequal power equations between men and women that foster violence and its acceptability, aggravated by cultural and social norms, economic dependence, poverty and even alcohol consumption.
Justice Joshi said that sexual violence is varied in degree and at the the highest (or, rather most aggravated) level, is rape with or without attendant violence.
He further underlined that there are a “substantial number of incidents which fall within the rubric of sexual violence, that amount to offences under various penal enactments”.
“These outlaw behaviours such as stalking, eve-teasing, shades of verbal and physical assault, and harassment. Social attitudes typically characterise this latter category of crimes as ‘minor’ offences. Such ‘minor’ crimes are, regrettably not only trivialised or normalised, rather they are even romanticised and therefore, invigorated in popular lore such as cinema,” the order noted.
The court underscored how such attitudes which indulgently view the crime through prisms such as “boys will be boys” and condone them, nevertheless have a lasting and pernicious effect on the survivors.
Noting that the culprits are often known to women, the judge said that the social and economic “costs” of reporting such crimes are high.
“General economic dependence on family and fear of social ostracisation act as significant disincentives for women to report any kind of sexual violence, abuse or abhorrent behaviour. Therefore, the actual incidence of violence against women in India is probably much higher than the data suggests, and women may continue to face hostility and have to remain in environments where they are subject to violence. This silence needs to be broken,” Justice Joshi asserted.
Putting the onus on men, he said, “men, perhaps more than women, have a duty and role to play in averting and combating violence against women”.
Bail denied to mother-in-law
The high court made the observations while dismissing the bail application of the woman, who has been accused of being complicit in the treatment meted out to her daughter-in-law.
The woman, her husband and son were booked under IPC sections of ‘outraging modesty’, cruelty and criminal intimidation. The son was also booked for rape among other charges under the IPC, as well as under the Information Technology Act.
The daughter-in-law, in her police complaint, accused her husband and in-laws of recording her nude videos and photos and uploading them on a porn website.
She further accused her father-in-law of instigating her husband to record their intimate scenes on phone and upload the same on a porn website to make money.
She stated that she had objected to this, but the in-laws forced her to get recorded on camera, in connivance with her husband. She even accused her husband of subjecting her to “unnatural” acts on his parents’ instigation.
She alleged that they had committed heinous acts with her as they were in desperate need of money to save their hotel from being sold off.
Advocate Rahul Dave, who opposed the bail application on behalf of the complainant, said that being a woman, the applicant (mother-in-law) had not done anything to save the integrity of another woman and, therefore, did not deserve any relief on the ground that she was a woman.
He added that in some of the photographs submitted in court, the applicant-accused was pictured along with her son touching the private parts of the complainant.
Dave also told the court that the complainant’s in-laws, especially the father-in-law, believed in superstition and had forced the woman to give premature birth to her child when she was seven months pregnant, and this was evident from the statement of a doctor in the charge sheet.
Justice Joshi observed that the mother-in-law was aware of the sexual assault and harassment meted out to her daughter-in-law.
“Whatever might be the reason behind doing such a heinous and shameful act, the same must be strictly criticised and the accused must be punished in order to prevent commission of such type of offences in future,” he said.
“(Mother-in-law) being a lady had not done anything to save the integrity of another lady when the complainant told her about each and everything that happened with her. She had to prevent her husband and son from doing such an act and by not doing so, she has played an equal role as that of the other two accused,” the judge said, while dismissing the bail application.
(Edited by Nida Fatima Siddiqui)
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