In a shot in the arm for the decades long feminist demand to recognise marital rape as a crime, Karnataka High Court, in its judgment dated March 23, 2022, rejected the Petition of a husband which sought to drop the rape charges, pressed against him by his wife.
The Court said, “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.”
Facts of the case
The Complainant – Mrs. Bratati @Pinky, got married to the Petitioner – Hrishikesh Sahoo, on June 20, 2006 at Bhuvaneshwar, and they also have a daughter born out of their wedlock. The couple stayed together at various parts of the country. But after a few years of living together, the relationship started getting increasingly abusive. There were many instances of physical and mental torture to the wife and the child during this period. This torture led the wife (complainant) to lodge an FIR for offences punishable under Sections 506, 498A, 323, 377 of the Indian Penal Code (IPC) and Section 10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO).
After that the police investigated the case and filed a charge sheet against the Petitioner which included the offences punishable under Sections 498A, 354, 376, 506 of IPC and Sections 5(m) and (l) r/w Section 6 of the POCSO Act, 2012. The case is registered in Trial Court as Spl.C.C.No.356 of 2017 in which the parents of the Petitioners, who were also in the charge sheet as Accuse no. 2 and 3, were discharged, and now the case is pending only against the Petitioner. Upon filing the charge sheet, the Special Court framed charges against the Petitioner for offences under Sections 376, 498A and 506 of IPC and Section 5(m) and (l) r/w Section 6 of the POCSO Act.
The Petitioner than approached the High Court with the Criminal Writ Petition seeking to quash the entire proceedings pending before Additional City Civil and Sessions Court and Special Court. The Petition also prayed to declare Sections 29 and 30 of the POCSO Act as unconstitutional, being violation of Articles 14, 19 and 21 of the Constitution.
High Court Order
Justice M. Nagaprasanna of the Karnataka High Court after hearing the counsel appearing from both the side laid down the following:
1. Whether cognizance being taken against the petitioner-husband for offence punishable under Section 376 of IPC is tenable in law?
Indian Penal Code does not consider marital rape as a punishable offence whereas it rather creates an exception in the definition of rape under Section 375 of the IPC. The exception 2 under the definition of rape under Section 375 of IPC is “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
The submission of the learned counsel for the Complainant was that the husband is protected by the institution of marriage for any of his acts being performed. The Court said that institution of marriage should not be construed to confer any special male privilege or a license of unleashing of a brutal beast. The Court further said that, “If it is punishable to a man, it should be punishable to a man albeit, the man being a husband.”
The Court noted that there is no doubt that the Complainant is being brutally, sexually violated and is being treated as a sex slave for long time. The Court found no fault with the learned Sessions Judge taking cognizance of the offences punishable under Section 376 of IPC and framing a charge to that effect. The Court further said that removing the rape allegations would amount to tremendous injustice to the Complainant – wife. The Court also cleared that declaring marital rape as an offence, is the subject to be considered by the legislature by considering the circumstances of the said issue.
2. Whether the allegation against the petitioner for other offences is tenable in law?
The Complaint, charge sheet and the statement recorded during investigation shows a clear picture of the offences (punishable under Sections 498A, 375, 354 and 506 of the IPC) being committed by the Petitioner against the Complainant. The Court further stated that it won’t interfere with the trial, particularly, in the light of the aforesaid allegations and if the Petitioner had anything in his defence, he needs to put it up before the Sessions Court and come out clean in the trial.
3. Whether the prosecution notwithstanding the presumption under Sections 29 and 30 of the Act has to prove the foundational facts beyond all reasonable doubt?
The Court addressing this issue said that the prosecution has to prove the foundational facts beyond all reasonable doubt and cannot rest its case on preponderance of probability, merely because the statute imposes the burden of proof on the accused to prove himself as innocent.
4. Whether the designated Court to try the offences under the Act has jurisdiction to try both the offences under the IPC and the Act in the facts of this case?
According to the counsel appearing for the Petitioner, as the complaint has charges under the IPC as well as the POCSO Act, the trial cannot be conducted in Special Court (designated under POCSO Act), not having jurisdiction to try the case under IPC and hence the trial needs to be segregated. The Court by rejecting this submission stated that the both the mother and daughter are the victims to the cruelty and harassment committed by the Petitioner. Hence both the cases are to be tried in Sessions Court.
5. Whether charges framed against the petitioner should be altered to include addition of the offence punishable under Section 377 of IPC?
The High Court finds the consideration of the Sessions Court that when the allegations made against the husband attracts Section 376 of IPC and accordingly a charge is framed of the said offence, there is no question of considering the request to frame a charge under Section 377 of IPC, erroneous. The allegations made in the complaint clearly make out an offence punishable under Section 377 of IPC which deals with unnatural sex. Therefore the Court sets aside the order under challenge, allowing the application filed by the complainant under section 216 of the Code of Criminal Procedure also directing the Session Court to frame the charges for the offence punishable under Section 377 of IPC.
6. Whether proceedings under the POCSO Act against the Petitioner need to be interfered with?
The Court after considering the allegations in the complaint and the written communications of the child declared that a full blown trial is necessary in the facts and circumstances of the case.
Law and Marital rape
Since 1950, India is governed by the Constitution which treats woman equal to man and also considers marriage as an association of equals. The Constitution guarantees the fundamental rights 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 Article 14, 15, 19 and 21.
A heinous 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’ which recommends that the country should “widen the definition of rape in its Penal Code to reflect the realities of sexual abuse experienced by women and to remove the exception of marital rape from the definition of rape…..”
Justice Verma Committee 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 through its Exception 2 in Section 375 of the IPC.
In 1736, Sir Mathew Hale declared, “The husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband which she cannot retract.” This immunity has now been withdrawn in most major jurisdictions. Lord Keith, speaking for the Court, declared, “Marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband.”
In Canada, the provisions in the Criminal Code, which denied criminal liability for marital rape, were repealed in 1983. It is now a crime in Canada for a husband to rape his wife. South Africa criminalised marital rape in 1993, reversing the common law principle that a husband could not be found guilty of raping his wife. In Australia, the common law ‘marital rape immunity’ was legislatively abolished in all jurisdictions from 1976. In 1991, the Australian High Court had no doubt that: ‘if it was ever the common law that by marriage a wife gave irrevocable consent to sexual intercourse by her husband, it is no longer the common law.’ According to Justice Brennan, “The common law fiction has always been offensive to human dignity and incompatible with the legal status of a spouse.”
Indian Penal Code appears to be therefore discriminatory, as every other man indulging in offences against woman is punished but when it comes to Section 375 the exception for the husband is bought up. This expression in the view of this Court 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.
The Order may be read here:
Related:
Gujarat HC rules on PASA Act, claims Preventive Detention untenable
HC grants bail to former IPS officer Amitabh Thakur
Delhi HC asks for Centre’s opinion on declaring the Child Marriage ‘void ab initio’