The Karnataka High Court on Wednesday said that sexual assault on a woman by her husband is nothing but rape, as it refused to quash proceedings against a man accused of raping his wife.
“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’,” Justice M Nagaprasanna said.
The court noted that it is for the legislature to delve upon the issue of ‘marital rape’ by amending the provision of exception to husbands under IPC Section 375, with Justice Nagaprasanna terming the exception "regressive".
The court made the observation while refusing to interfere with the proceedings against the petitioner husband who is facing charges of rape, cruelty and offences under the Pocso Act for alleged sexual acts against his wife and daughter.
“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 lawmakers to now “hear the voices of silence,” Justice Nagaprasanna said.
The court said the exception provided to husbands under IPC Section 375 (rape) amounts to discrimination and the legislature may consider tinkering the exemption.
The exception, after the amendment in 2013, states: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not 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. It is for the legislature, on an analysis of manifold circumstances and ramifications, to consider the aforesaid issue,” Justice Nagaprasanna said.
The bench said the Constitution treats women as equal to men and considers marriage as an association of equals. However, the IPC code discriminates, the court noted.
“Under the Code, every other man indulging in offences against woman is punished for those offences. But, when it comes to Section 375 of the IPC, the exception springs," Justice Nagaprasanna observed.
"In my considered view, the expression is not progressive but regressive, wherein a woman is treated as subordinate to the husband, which concept abhors equality. It is for this reason that several countries have made such acts of the husband penal by terming it marital rape or spousal rape.”
The court further pointed out that Justice J S Verma Committee, appointed by the Union government, had recommended deleting the exception of marital rape.
But the amendment that came about only replaced the word ‘rape’ with ‘sexual assault’ in IPC section 375.
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Delhi HC on marital rape
The Delhi High Court's division bench has reserved its judgement in a batch of matters challenging validity of Exception 2 of Section 375 IPC, which decriminalises marital rape.
Amid a demand from lawyers, activists, politicians and citizens for criminalising marital rape in Delhi, the Union government maintained that a comprehensive approach is needed on the matter rather than a strictly legal view as it have a socio-legal impact.
"The government is yet to formulate a stand. It is neither saying yes nor no because consultations have not been completed," Solicitor General Tushar Mehta has said.