In a significient observation, the Karnataka High Court has held that exemption to marital rape from the offence of Rape under Section 375 IPC cannot be absolute.
The single-judge Bench of Justice M. Nagaprasanna refused to quash charges against a husband while terming the exemption as "regressive" and contrary to the principle of equality enshrined under Article 14 of the Constitution of India.
The question raised by the writ for the High Court's consideration was whether integrity and bodily freedom of a woman, the wife, being ravaged by a man, the husband could be absolved and protected by a law that mandates equality of its application?
Section 375 IPC and Article 14
Since exemption to Section 375 IPC was made the primary ground, the Court analysed the same from its genesis to the present form.
"The genesis of Section 375 of the IPC and its exception has its roots in the Code propounded by Macaulay in 1837. It is Macaulay’s Code that becomes the basis for the Indian Penal Code of 1860, which governs the penal provisions even as on date with certain changes on certain occasions. Exception to Section 375 has existed in the IPC since the time of its enactment by the British in the year 1860. Exception-2 then was guided by the laws that were existent in all the countries where the British had their foot on. They were several decades ago. It was founded and remained on the premise of a contract in the medieval law that husbands wielded their power over their wives. In the Victorian era women were denied the exercise of basic rights and liberties and had little autonomy over their choice. Their statuses were nothing beyond than that of materialistic choices and were treated as chattels."
The Court compared the existence of the said exemption to the provisions of the Constitution.
"Post Republic, India is governed by the Constitution. The Constitution treats woman equal to man and considers marriage as an association of equals. The Constitution does not in any sense depict the woman to be subordinate to a man. The Constitution guarantees fundamental rights under Articles 14, 15, 19 and 21 which are right to live with dignity, personal liberty, bodily integrity, sexual autonomy, right to reproductive choices, right to privacy, right to freedom of speech and expression. Under the Constitution, the rights are equal; protection is also equal."
The Court was caught into chills with the present case, as the wife-the complainant, cried foul in no unmistakable terms that she was being brutally, sexually harassed keeping her as a sex slave for ages.
"The contents of the complaint are an outburst of tolerance of the wife of the brutal acts of the petitioner. It is akin to eruption of a dormant volcano. In the teeth of the facts, as narrated in the complaint, in my considered view, no fault can be found with the learned Sessions Judge taking cognizance of the offences punishable under Section 376 of IPC and framing a charge to that effect."
To this, the Court noted that no exemption in law can be absolulte so as encouraging commission of offence itself.
"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 license for commission of crime against society. Though the four corners of marriage would not mean society, 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. 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."
"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. It is for the petitioner to come out clean in the trial, if he is so much in the defensive of his acts. Interjecting the trial in the teeth of the aforesaid complaint and the charge being framed would become a travesty of justice."
Amendment to Section 375 IPC
The Court noted that close to eight score and three years, the need to tinker with Section 375 of the IPC did not arise but a fateful incident of a gang rape in the capital led to the Union Government constituting a Committee headed by Justice J.S.Verma, to suggest amendments dealing with sexual offences in the Code. The Committee, after prolonged deliberations, gave several recommendations for amendments to criminal law. One such was concerning ‘Marital Rape’.
It was recommended that:
i. The exception for marital rape be removed.
ii. The law ought to specify that:
a. A marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation;
b. The relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity;
c. The fact that the accused and victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape
The recommendations of the Committee were accepted by the Union Government partially and amendments were carried out. Section 375 of the IPC came to be amended with effect from 10-05-2013 after introduction of Criminal Law Amendment Bill before the Parliament, pursuant to the constitution of J.S.Verma Committee for suggesting amendments to criminal law.
The Exception to pre-amendment reads as follows:
“Exception.—Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
The Exception to post-amendment reads as follows:
“Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
There is a marked difference in the afore-quoted provisions, pre and post of the Code and the exception with regard to inclusion of certain physical activity qua the woman by a man, the Court noted.
"The amended exception depicts intercourse by a man with his own wife, the wife not being under 15 years of age would not be a rape. The post amendment the exception adds the words ‘sexual acts’ by a man along with the words ‘sexual intercourse’. The difference is inclusion of the word “or sexual acts”. Therefore, the exception now is of sexual intercourse and other sexual acts by the husband stand exempted. Therefore, 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 Right to Equality. The Constitution recognizes and grants such equal status to woman as well."
Justice Verma Committee (supra) also recommended for deletion of the exception of marital rape. But, the amendment came about was only replacing the word ‘rape’ with ‘sexual assault’ in Section 375 of IPC. Therefore, the situation now emerges is equality pervades through the Constitution, but inequality exists in the Code qua - Exception-2 to Section 375 of the IPC, the Court added.
Protection of women and equal status to women
There are several other enactments which have been enacted post the Constitution with the sole objective of protection of woman or a girl child. The soul of these enactments are, protection of women and equal status to women.
To name, The National Commission for Women, Immoral Traffic (Prevention) Act, 1956, The Indecent Representation of Women (Prohibition) Act, 1986, Dowry Prohibition Act, 1961, Hindu Succession (AMENDMENT) Act, 2005, The Protection of Human Rights Act, 1993, The Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994, Protection of Women from Domestic violence Act, 2005
In light of the above, the Court noted that women are equal in its true sense factually and legally. The aforesaid provisions are quoted only as a metaphor to demonstrate equality without exception pervading through the entire spectrum of those provisions, the Constitution, the code and the enactments.
The Court thus called the exception to Section 375 of IPC as regressive and ultra vires to Article 14.
"the Constitution, a fountainhead of all statutes depicts equality. The Code practices discrimination. Under the Code every other man indulging in offences against woman is punished for those offences. 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. It is for this reason that several countries have made such acts of the husband penal by terming it marital rape or spousal rape.."
Marital Rape and World Law
The Court mentioned 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. In the United Kingdom, which the present Code largely draws from, 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.
A man is a man; An act is an act; Rape is rape
The Court noted that a man who is well acquainted with a woman performs all the ingredients as is found in pre or post amendment to Section 375 of the IPC, can be proceeded against for offences punishable under Section 376 of IPC. It rejected 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, stressing that a man is a man; an act is an act; rape is rape, be it performed by a man the “husband” on the woman “wife”.
In furtherance, the Court also wasn't impressed with the submission of the learned senior counsel that the husband is protected by the institution of marriage for any of his acts being performed, as is performed by a common man, again sans countenance, for the reason that institution of marriage does not confer, cannot confer and was of the view that the same should not be construed to confer any special male privilege or a license 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 Court remarked.
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