Marital Rape Exception Regressive, Violates Article 14; Husband Not Ruler Of Wife's Body & Mind : Karnataka High Court

In a significant judgement, the Karnataka High Court has rejected a petition filed by a husband seeking to drop charges of rape under Section 376 of the Indian Penal Code, levelled against him by his wife.The Court did not accept the husband's argument that the charge cannot be framed against him due to the exception to marital rape from the offence of rape as per Exception 2 to Section 375 of the Indian Penal Code. The Court observed that the exemption cannot be absolute."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", the Court said.The Court observed that the exemption to marital rape is "regressive" and would run counter to the principle of equality enshrined under Article 14 of the Constitution of India. A single judge bench of Justice M Nagaprasanna said ,"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." "If a man, a husband, a man he is, can be exempted of allegation of commission of ingredients of Section 375 of the IPC, inequality percolates into such provision of law. Therefore, it would run counter to what is enshrined in Article 14 of the Constitution", the Court observed.The Court further said: "All human beings under the Constitution are to be treated equal, be it a man, be it a woman and others. Any thought of inequality, in any provision of law, would fail the test of Article 14 of the Constitution. Woman and man being equal under the Constitution cannot be made unequal by Exception-2 to Section 375 of the IPC. It is for the law makers to ponder over existence of such inequalities in law".It may be noted that the Court has not ruled on the constitutionality of Exemption 2 to Section 375 IPC. It may also be recalled that the Delhi High Court has recently reserved judgment on a batch of petitions challenging the exemption to marital rape.Husband raping a woman amenable to punishment under Section 376 IPCIt added, "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. Therefore, a man sexually assaulting or raping a woman is amenable to punishment under Section 376 of IPC." Junking the contention of the petitioners counsel that if the man is the husband, performing the very same acts as that of another man, he is exempted, the bench said "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". Case Background: The wife filed the complaint against the husband on 21.03.2017 with the police. Following which the an offences punishable under Sections 506, 498A, 323, 377 of the Indian Penal Code ('IPC' for short) and Section 10 of the Protection of Children from Sexual Offences Act, 2012 ('POCSO Act' for short). The Police, after investigation, filed a charge sheet against the petitioner. While filing the charge sheet, the offences punishable under Sections 498A, 354, 376, 506 of the IPC and Sections 5(m) and (l) r/w Section 6 of the POCSO Act, 2012, are invoked. The Special Court framed charges against the petitioner alone in terms of its order dated 10.08.2018, for offences punishable under Sections 376, 498A and 506 of IPC and Section 5(m) and (l) r/w Section 6 of the POCSO Act. It is at that juncture, the petitioner has knocked the doors of this Court in the subject criminal petition seeking the following prayers Court findings: The bench on going through the chargesheet said "The charge sheet filed by the Police after investigation (supra) also depicts graphic details of the demonish lust of accused No.1 who even according to the investigation has had unnatural sex; every time has sexual intercourse torturing or abusing the wife, or threatening to beat the daughter or beating the daughter, all for satisfaction of the gory carnal lust." The bench took into account the genesis of Section 375 of the IPC and its exception and how its roots in the Code propounded by Macaulay in 1837, which became the basis for the Indian Penal Code of 1860, which governs the penal provisions even as on date with certain changes on certain occasions. It said "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...

Marital Rape Exception Regressive, Violates Article 14; Husband Not Ruler Of Wife's Body & Mind : Karnataka High Court

Mustafa Plumber

The Court held that husband raping his wife is amenable to the offence of rape under Section 376 IPC.

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