Man can be booked for raping wife: Karnataka high court

The Karnataka high court on Wednesday said that a man can be booked for raping his wife while rejecting a petition filed by a man seeking to drop the rape charge levelled against him by his wife under Section 376 of the Indian Penal Code —a significant ruling that comes at a time when the Delhi high court has reserved its judgment on a batch of petitions seeking the criminalisation of marital rape.

The court noted that the exclusion of marital rape from the penal provision for rape (Exception 2 to Section 375 of the IPC) cannot be absolute, and that such exception is “regressive”.

The single bench of Justice M Nagaprasanna said that the institution of marriage can’t be used to confer any special male privilege or licence for unleashing a “brutal beast” on the wife.

“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,” read the court order.

The judgment was issued in connection with a case filed on March 3, 2017, in which a woman accused her husband of rape and torture. The woman filed a complaint under sections 506 (criminal intimidation), 498A (domestic violence), 323 (assault), and 377 (unnatural offences) of the Indian Penal Code (IPC) and section of the POCSO Act.

The charges under the POCSO Act were in connection with the threats to harm her child.

The bench pointed out that a sexual assault has grave consequences on the mental health of a wife. It added that such acts have both psychological and physiological impacts on the woman, and “scar the soul of the wives.”

The court also observed that the exemption to marital rape would run counter to the principle of equality enshrined under Article 14 of the Constitution.

“The age-old thought and tradition that the husbands are the rulers of their wives, their body, mind and soul should be effaced. It is only on this archaic, regressive and preconceived notion, that cases of this kind are mushrooming in the nation…The Constitution, a fountainhead of all statutes, depicts equality. The (Indian Penal) Code practices discrimination,” the bench added.

The court further added that it was for the legislature to look into the issue and consider altering the existing exemption for marital rape. “This court is not pronouncing upon whether marital rape should be recognised as an offence or the exception be taken away by the legislature… Women and men being equal under the Constitution cannot be made unequal by Exception-2 to Section 375 of the IPC. It is for the lawmakers to ponder over the existence of such inequalities in law,” read the order.

The court stated the genesis of Section 375 of the IPC and its exception has its roots in the IPC propounded by Macaulay in 1837, which is outdated now. Pointing out that compared to the Victorian era where husbands wielded their power over their wives and women had little autonomy over their choice, the Constitution treats women equal to men and considers marriage as an association of equals.

“Therefore, 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”

The Court did not accept the contention of the petitioner that if the man is the husband, he is exempted from section 376. “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.

“This is indeed a landmark judgment. We have been fighting against the exception of marital rape and it is a welcome step,” said Pramila Nesargi, lawyer and women’s rights activist based in Bengaluru. “While in Karnataka the HC judgment will be applicable in similar cases, this will have persuasive power in other states.”