Karnataka HC:Rape is rape, even if man is husband

In a landmark decision,the Karnataka High Court Wednesday refused to quash rape charges filed by a wife against her husband, defying the exception in law, and, instead, called on lawmakers to hear the “voices of silence.”  Marriage is not a license to “unleash a brutal beast”. The court, while upholding charges against a husband accused of raping his wife, observed, “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 court also called for the “age-old thought and tradition that husbands are the rulers of their wives, their body, mind and soul” to be effaced.  “It was only on this archaic, regressive and preconceived notion that such cases are mushrooming in the nation,” the order said.

Justice M Nagaprasanna declined to accept the husband’s plea that he cannot be tried for marital rape under the Indian Penal Code (IPC). “In my considered view, such an argument 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”,” the bench pointed out. Justice Nagaprasanna questioned the exemption of marital rape from section 375 of IPC, observing that it was “regressive” and runs counter to the principle of equality enshrined under Article 14 of the Constitution.

In March 2017, the woman accused her husband of aggravated sexual harassment assault of her 9-year-old daughter, domestic violence, causing hurt. On completing their investigation, the police added section 376 of IPC which relates to punishment for rape, and sections 5 (m) and (l) and section 6 of the Protection of Children from Sexual Offences Act, which relate to repeated penetrative sexual assault. The Karnataka government’s law officer told the court during arguments that “since the husband is exempted from the allegation of Section 375 of the IPC, even if the facts warrant, it is for this court to consider the same in the light of the exception. But she (law officer) would submit that it is a matter for trial.”

In 2018, a similar case was brought before the Gujarat High Court in which a married man sought quashing of the rape case against him filed by his wife. Although the HC quashed the FIR to remove the rape charges, it gave a lengthy reasoning on the need to criminalise marital rape. The Constitutionality of the marital rape exception is currently under challenge before the Delhi and Gujarat High Courts.