The Gujarat High Court has stated that rape is a grave offence, even if it is committed by a husband on his wife, Bar and Bench reported on Monday.

Justice Dinesh Joshi made the observations on December 8 while dismissing a bail application filed by a woman, who was booked along with her husband and son, on charges of rape, outraging modesty, cruelty and criminal intimidation. They were also booked under the Information and Technology Act.

The woman’s daughter-in-law had filed a complaint against her husband and parents-in-law, accusing them of recording her nude videos and photos. The complainant had alleged that her father-in-law encouraged her husband to record their intimate acts on the latter’s mobile phone and upload them on a pornographic website to earn money.

The complainant also alleged that her father-in-law sexually assaulted her, reported Live Law.

In its order, the High Court said that marital rape is illegal in fifty American States, three Australian States, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, the Soviet Union, Poland, Czechoslovakia and several other nations.

“The United Kingdom, which the Indian Penal Code largely draws from, has also removed the exception [to Indian Penal Code Section 376] pursuant to a judgment in 1991,” said Justice Joshi.

Exception 2 in Section 376 states that forcible sexual intercourse by a man with his wife is not rape unless the wife is below 15 years of age.

The court also noted that the actual incidences of violence against women in India may be much higher than the data shows.

“In most of the cases of [sexual assault or rape on a woman], the usual practice is that if the man is the husband, performing the very same acts as that of another man, he is exempted,” Justice Joshi said. “In my considered view, the same 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’.”

He also said that there is a need to change the social attitude of “boys will be boys” that trivialises and normalises offences like sexual harassment and stalking.

Notably, several petitions are pending in the Supreme Court seeking to criminalise marital rape.

The Gujarat High Court’s order is in contrast to the Delhi High Court’s judgement from last year.

In May 2022, a division bench of the Delhi High Court delivered a split verdict in a marital rape case.

Justice Rajiv Shakdher had held that a woman in a marriage has the right to withdraw her consent at any point and the immunity presently provided to the husband for marital rape was discriminatory and infringed on her bodily autonomy and expression. This made it unconstitutional.

However, Justice C Hari Shankar held that sexual acts between a husband and wife, “whether consensual or non-consensual”, should be treated differently from non-consensual sexual acts between men and women who are not married to each other.

Marriage entailed a “legitimate expectation of sex”, he said. Therefore, an exception for marital rape would be legal.