The Karnataka High Court on Wednesday refused to quash rape charges against a man accused of sexually assaulting his wife, reported Bar and Bench.

“A brutal act of sexual assault on the wife, against her consent, albeit by the husband, cannot but be termed to be a rape,” said a single-judge bench of Justice M Nagaprasanna. “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.”

Exception 2 in the rape law under Section 375 of the Indian Penal Code states that forcible sexual intercourse by a man with his wife is not rape, unless the wife is below 15 years of age. On this, the court observed that that the law had been enacted during the Victorian era, in 1860, when women were “denied their basic rights and liberties, and were treated as chattels”.

“Post Republic, India is governed by the Constitution,” said the court. “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 judge observed that the institution of marriage cannot be a “special male privilege or license for unleashing a brutal beast”.

“If it is punishable to a man, it should be punishable to a man albeit, the man being a husband,” the judge said, according to Bar and Bench.

On the exception to rape law that does not allow to hold husbands guilty for marital rape, the judge added:

“[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.”

— Live Law

The court observed that several countries such as the United States, Canada, New Zealand, France, Sweden, Denmark consider marital rape illegal, such as and several others. Even the United Kingdom struck down the exception in 1991, the judge said.

However, the court noted that it will not pronounce whether marital rape should be recognised as an offence or not.

“It is for the legislature, on an analysis of manifold circumstances and ramifications to consider the aforesaid issue,” the judge said, according to Live Law. “This court is only concerned with the charge of rape being framed upon the husband alleging rape on his wife.”

The case

The woman had alleged in the complaint that her husband would force himself on her regularly, make her perform oral and anal sex, and imitate pornographic films. He raped her even during her pregnancy, and sexually assaulted their daughter after bringing her home early from school, the woman alleged.

The husband sexually assaulted the woman in front of their daughter and threatened to beat up the child.

The accused has been charged under sections 506 [punishment for criminal intimidation], 498A [cruelty to wife], 323 [Punishment for voluntarily causing hurt], and 377 [Unnatural offences], the Protection of Children from Sexual Offences Act, and section 376 [rape].

“I do not want any daughter or any mother to undergo the sufferings which both me and my daughter have suffered”, said the petitioner, according to Bar and Bench.

Delhi High Court on criminalising marital rape

The Delhi High Court had on February 21 reserved its verdict on the petitions seeking to criminalise marital rape.

A bench of Justices Rajiv Shakdher and C Hari Shankar heard a batch of petitions to remove Exception 2 in the rape law under Section 375 of the Indian Penal Code.

On February 7, the High Court had given the Centre two weeks’ time to clarify its stand on the matter after the government had said it wanted to consult the stake holders.

However, the court, in its order said that it would not be possible to defer the hearing as there was no fixed date when the consultation process will get over.

“In the meanwhile, counsel for the parties will file written submissions and convenience complication,” the order said.

The Centre had sought to defer the hearing through an affidavit filed on February 3. In its affidavit, the Union Ministry of Home Affairs had said that the questions involved in the case have “far-reaching socio-legal implications”.

The ministry said that the matter needed a comprehensive approach rather than just a strictly legal view. It said that there would be no prejudice if the matter is deferred as the case has been pending since 2015.

This reflected a change in the Centre’s stance from an earlier affidavit filed in the case.

In an affidavit filed in 2017, the government had said that criminalising marital rape would destabilise the institution of marriage. It had also said that the criminalisation would become an “easy tool” for harassing husbands.