The Karnataka High Court on Wednesday upheld a sessions court order charging a husband of marital rape. The man, who is charged with raping his wife and minor daughter, will have to stand trial and defend himself in court.
The high court's observations on marital rape are significant as women's rights groups await the Delhi High Court's verdict on the constitutionality of Exception 2 of the rape laws which exempts a husband from charges of rape against his wife.
Justice M Nagaprasanna endorsed the idea that the exemption granted to a husband with respect to rape laws cannot be absolute. "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 said.
The contention that if a man committing rape is a husband, he is therefore exempted from charges of rape cannot be tolerated Justice Nagaprasanna observed. The institution of marriage does not and cannot confer "any special male privilege" or "licence for unleashing of a brutal beast", the judge added.
"If it is punishable to a man, it should be punishable to a man albeit, the man being a husband," the order read.
Also Read: Marital Rape: Delhi HC Reserves Verdict, Centre Refuses To Take Stand
Exemption of rape laws against a husband cannot be absolute
The single-judge bench of the Karnataka High Court observed that the exemption to a husband who committed sexual assault on his wife 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.
Justice M Nagaprasanna clarified that it was not giving a verdict on whether marital rape should be recognized as an offence or the exception be taken away by the legislature. That, the high court said, was for the legislature to decide. "This Court is concerned only with the charge of rape being framed upon the husband alleging rape on his wife," the high court order said.
"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," the high court queried.
"If a man, a husband, a man he is, can be exempted of an allegation of commission of ingredients of Section 375 of the IPC, inequality percolates into such provision of law," the judge pointed out. He added that men and women could not be made unequal by the Exception-2 to the rape laws.
"It is for the lawmakers to ponder over the 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," Justice Nagaprasanna observed. "The age-old thought and tradition that the husbands are the rulers of their wives, their body, mind, and soul should be effaced," he added.
"It is only on this archaic, regressive, and preconceived notion, that cases of this kind are mushrooming in the nation. This is in fact in the 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," the order read.
"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 lawmakers to now "hear the voices of silence"," the judge said in conclusion.
Also Read: Take A Final Stand On The Issue Of Marital Rape: Delhi HC to Centre
Indian Penal Code practices discrimination
The Indian Penal Code (IPC) practices discrimination, the Karnataka High Court observed. The inequality where a man may be punished for his acts, but a husband is exempted from the same destroys the soul of the constitution which is right to equality," the order said.
"Under the Code (IPC) every other man indulging in offenses against woman is punished for those offenses. 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," the judge said.
"It is for this reason that several countries have made such acts of the husband penal by terming it marital rape or spousal rape," he added.
Also Read: Explained: Why A Law Against Marital Rape Is An Idea Whose Time Has Come