The recent judgment of the Karnataka High Court on marital rape has ignited a national debate. In Hrishikesh Sahoo v. State of Karnataka, Justice M Nagaprasanna held that “in the peculiar facts and circumstances” of the case, when the husband “rapes” a wife, he cannot claim the protection of exception enumerated under Section 375 of the Indian Penal Code (IPC), since the exemption is not “absolute”. The court said that “no exemption in law can be so absolute that it becomes a license for commission of crime against society”. In the words of the court, “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”’.
Section 375 of the IPC defines the offence of rape. Exception 2 under Section 375 says that sexual intercourse or sexual acts by a man with his own wife is not rape, provided the wife is not under 15 years of age. Thus, according to the provision, even if the husband commits rape on his wife, no offence could be made out. Marriage thus erases an offence that is otherwise punishable.
This exception clause is a colonial law that treats the wife as mere chattel. It reflects the era of men dominating or enslaving women. This provision, originally designed by Macaulay and later incorporated in 1860 in the Penal Code, cannot pass the constitutional muster. This archaic clause runs against the ideas of equality, dignity and freedom enshrined in the Constitution. It negates the very concept of gender equality and democracy within the family. It particularly attacks the independence, privacy and autonomy of married women. It is high time that this patriarchal remnant is struck down by the court.
The Karnataka verdict pleads for “the rights of women, protection of women and their equal status to that of a man without exception”. The court is correct. The court is also correct in noting the recommendation of the Justice Verma Committee (2013) that called for deletion of this exception from Section 375 to restore the principles of constitutional morality into our penal laws. There can be no legal sanction for a husband to commit a heinous crime. In the words of the court, the “institution of marriage does not confer, cannot confer and … should not be construed to confer any special male privilege or a license for unleashing of a brutal beast”. Marital rape is a crime in many nations like Canada, Israel, France, Sweden, Denmark, Norway, and Poland, notes the judgment.
Still, the verdict is troubling. A judgment needs to be realistic, contextual and sensible. What is acceptable at the macro level should be equally acceptable at the micro level. What is just in doctrinal terms needs to be just in practice as well. Breach of this principle could lead to chaos.
The case before the Karnataka HC was not one challenging the constitutional validity of the exception under Section 375 of the IPC. Nor did the court strike down the said exception. The court, on the other hand, examined only a given situation, where the police registered the crime and the trial court took cognisance of the crime, i.e., the offence of rape, allegedly committed by the husband on his wife. The accusations are, no doubt, shocking. The narration is terrifying. Other heinous offences also are alleged. But the ultimate point is, going by the plain meaning of the text of the IPC provision, as it then stood, and as it now stands, a husband cannot be termed guilty of rape of his adult wife. Article 20(1) of the Constitution says that “no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence”. What was not an offence at the time of its commission cannot be termed as an offence by way of an interpretive process. Such a ‘constitutional interpretation’ can only be unconstitutional.
In the Karnataka episode, the court even said that it is for Parliament to consider the question of changing the law. But while considering “the charge of rape being framed upon the husband alleging rape on his wife” in the given case, the court pronounced against the express words in the Penal Code. This is an alarming situation, by any yardstick of statutory interpretation or constitutional adjudication. This is simply impermissible in a system governed by the principles of Rule of Law.
There is a marked difference between decriminalising an act labelling it as unconstitutional and criminalising it on the ground of unconstitutionality. The Supreme Court adopted the former approach while decriminalising homosexuality (Navtej Singh Johar v. Union of India, 2018) and Adultery (Joseph Shine v. Union of India, 2018). In the process, it also set free certain people from criminal charges. However, while criminalising an act that was not criminal according to a statute, the court not only acts against the mandate of Article 20 but also meddles with liberty of the individual. The former enhances the citizen’s freedom by relying on the Constitution whereas the latter curtails it, by negating the Constitution. The court thereby enters the forbidden zone of penal legislation. The Karnataka verdict itself says that the process of legislation is beyond the judicial terrain. The functional dilemma of the court gave way to a convoluted judgment. In the case, the legally guaranteed rights of the accused were at stake. A nation’s democratic index depends heavily upon its treatment of those who are caught in the web of penal laws rather than the privileged. The Karnataka verdict is, therefore, problematic and disturbing.
Lawyer, Supreme Court of India