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India: Exemption Given to Husband in Marital Rape Cases Cannot Be Absolute: Karnataka HC

Sunday 27 March 2022, by siawi3

Source: https://thewire.in/law/karnataka-high-court-marital-rape-absolute-exemption

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Exemption Given to Husband in Marital Rape Cases Cannot Be Absolute: Karnataka HC

“The institution of marriage does not confer, cannot confer and in my considered view, should not be construed to confer, any special male privilege or a license for unleashing of a brutal beast,” the court said.

Karnataka high court. Photo: Wikimedia Commons/Kuskela CC BY 3.0

The Wire Staff

New Delhi: In a significant judgment, the Karnataka high court allowed the rape charge against a husband to stand despite the exception under Section 375 of the Indian Penal Code (IPC), saying the institution of marriage cannot confer any special male privilege or license to assault a woman.

The court was hearing a petition submitted by a man against whom the police had filed a chargesheet for several offences, including rape. His wife accused him of making her his “sex slave” right from the beginning of their marriage. The man said the exception granted in Section 375 of the IPC meant that marital rape is not a recognised offence.

In his judgment, Justice M. Nagaprasanna said, “The institution of marriage does not confer, cannot confer and in my considered view, should not be construed to confer, any special male privilege or a license for unleashing of a brutal beast. If it is punishable to a man, it should be punishable to a man albeit, the man being a husband.”

According to LiveLaw, the order adds, “A brutal act of sexual assault on the wife, against her consent, albeit by the husband, cannot but be termed to be a rape. 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. Such acts of husbands scar the soul of the wives. It is, therefore, imperative for the law makers to now ‘hear the voices of silence’.”

The HC order, however, adds that it is not discussing whether marital rape should be recognised as an offence, saying that is for the legislature to consider. “This court is concerned only with the charge of rape being framed upon the husband alleging rape on his wife,” it said.

“If the allegation of rape is removed from the block of offences alleged, it would, in the peculiar facts of this case, be doing tremendous injustice to the complainant-wife and would amount to putting a premium on the carnal desires of the petitioner. Therefore, the point that has arisen for my consideration is held in favour of the prosecution and against the petitioner,” the court said.

The court said that the exemption to the husband on committal of assault or rape “cannot be absolute”, as no exemption in law can be so absolute that it becomes a license for the commission of crime against society.

The HC also allowed charges under the POCSO Act to be framed, based on the wife’s allegations that her husband forced her into sexual intercourse in front of their daughter.

The verdict comes as several courts are hearing petitions against the immunity provided to marital rape.