Exemption given to husband in cases of 'marital rape' cannot be absolute, says Karnataka HC

"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 wife," said Justice Nagaprasanna

Published: 23rd March 2022 07:48 PM  |   Last Updated: 23rd March 2022 07:49 PM   |  A+A-

Karnataka High Court

Karnataka High Court (Photo | EPS)

By Express News Service

BENGALURU: The Karnataka High Court on Wednesday declined to interfere over charges framed against a husband for 'marital rape', despite an exception under Section 375 of the Indian Penal Code (IPC), by a sessions court in the city, considering the peculiar facts and circumstances of the case filed by the wife.

"The charge framed against the husband under Section 376 of the IPC for alleged rape of his wife does not warrant any interference. 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-husband," said Justice M Nagaprasanna while hearing the petition filed by the husband before the high court against the session's court order.

Noting that the charge framed by the sessions court is to be altered by inclusion of offence punishable under Section 377 of the IPC, the court said that the exemption for the husband on committal of such assault/rape, cannot be absolute, as no exemption in law can be so absolute that it becomes a licence for commission of crime against society. Though the four corners of marriage would not mean society, it is for the legislature to delve upon the issue and consider tinkering with the exemption.

The court said it is not pronouncing upon whether marital rape should be recognised as an offence or the exception be taken away by the legislature. It is for the legislature, on an analysis of manifold circumstances and ramifications, to consider the issue. This court is concerned only with the charge of rape of his wife being framed upon the husband, Justice M Nagaprasanna said.  

The court also gave the green signal to the sessions court to try the offences alleged under the POSCO Act against the husband, based on the complaint filed by the wife, for alleged sexual assault of their daughter.

Highlights of HC verdict

Marital rape illegal in many countries:

"Referring to exception under Section 375 of IPC and considering such acts of the husband penal by terming it marital rape or spousal rape, the high court pointed out that marital rape is illegal in 50 American states, 3 Australian states, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia and several others. The United Kingdom, from where the present Code largely draws from, has also removed the exception pursuant to a judgment rendered by the House of Lords in 1991. Therefore, the Code that was made by the rulers then, has itself abolished the exception given to husbands"

Word 'rape' was replaced with 'sexual assault'

"Justice Verma Committee recommended deletion of the exception of marital rape. But, the amendment only replaced the word ‘rape’ with ‘sexual assault’ in Section 375 of the IPC. Therefore, the situation that now emerges is equality pervades through the Constitution, but inequality exists in the Code qua - Exception-2 to Section 375 of the IPC"

Inequality destroys soul of Constitution

"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 Constitution recognizes and grants such equal status to woman as well".


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  • Gautam Rao

    If the high court lectures about equality and if all human beings are equal
    1 year ago reply
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