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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”.Karnataka HC order at para 28
The Karnataka High Court's order refusing to quash charges of rape against a man accused of forcibly having sex with his wife is likely to be lauded for its progressive sentiment, and its refusal to allow the alleged perpetrator of a brutal crime to hide behind the archaic marital rape exception.
The single-judge bench of Justice M Nagaprasanna held that the exemption provided by Exception 2 to Section 375 of the Indian Penal Code – which says that any sexual intercourse or acts by a husband with his wife is not rape – cannot be absolute.
This is because, the high court held, "no exemption in law can be so absolute that it becomes a license for commission of crime against society."
It should be noted that the court was clear that it was not striking down the marital rape exception, which it said was the legislature's prerogative.
However, it held that in this specific case, where the husband was alleged to have committed brutal acts of forced sex on his wife and kept her as a sex slave, the marital rape exception could not be considered to give complete immunity from the charge of rape to him.
Justice Nagaprasanna held that the institution of marriage "cannot confer and in my considered view, should not be construed to confer, any special male privilege or 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," he added.
To interject the trial and not allow a charge of rape under Section 376 of the IPC (which deals with punishment for rape) "would become a travesty of justice," the order says. It also says that this would do a "tremendous injustice to the complainant-wife and would amount to putting a premium on the carnal desires of the petitioner".
The order is not the final verdict in the case and is not a conviction. The man had approached the high court to ask for the entire case against him to be quashed, with one specific request also made to overturn the trial court's decision to allow him to be charged with rape.
The Karnataka High Court refused to quash the case, finding that there were sufficient grounds to go to trial. For the reasons mentioned above, it also refused to remove the charge of rape.
The problem is, that while this order is certainly a welcome one given the injustice of the marital rape exception – which has been retained in the IPC since its inception in 1860 and even after the United Kingdom, who gave it to us, got rid of it in 1991 – it isn't exactly a legally sound one.
Can't This Order Be Used in Other Marital Rape Cases?
India is one of only around 30 countries around the world to retain a marital rape exception.
While married women can file a variety of criminal cases against their husbands for domestic violence and cruelty, Exception 2 to Section 375 means that husbands can avoid the more serious punishment for the offence of rape, if they force their wives to have sexual intercourse without consent.
The Delhi High Court recently concluded its hearings on the constitutionality of the marital rape exception, and could perhaps strike it down. However, as things stand, the exception remains part of the law, and is widely considered a blot on gender justice in the country.
With this background, it is no doubt tempting to welcome the Karnataka High Court's judgment and to even hope that it might become a precedent that can be followed to prevent married men from sexually abusing their wives and getting away with it.
Unfortunately, this is not really possible.
First off, the order applies to the "peculiar facts of this case" according to the judge, and so cannot be directly applied to other cases with difference factual circumstances.
As mentioned earlier, Justice Nagaprasanna expressly clarifies that "This Court is not pronouncing upon whether marital rape should be recognised as an offence or the exception be taken away by the legislature."
This could perhaps still leave open the possibility that the approach followed by the judge here – to say that the exception is not absolute and cannot apply given the brutal nature of the alleged offences here – may still be applied in future cases.
Unfortunately, the judge has failed to provide sufficient reasoning and authority to justify this approach, which is highly likely to be struck down on appeal, or be considered per incuriam by other courts. (ie legally incorrect because it fails to consider a statutory provision or binding precedent.)
Order is 'Legally Untenable': Rebecca John
"The end result is laudable. The judge's concern is laudable. But the order is unsustainable," senior advocate Rebecca John told The Quint.
John, one of India's leading criminal law practitioners, had recently been appointed as an amicus curiae by the Delhi High Court while it was hearing petitions challenging the marital rape exception.
The judges of the Delhi High Court asked her for her expert opinion on the exception from a criminal law perspective, and she had made detailed submissions to them about the history of the exception, how Section 375 was structured, and whether striking down the exception would amount to creation of a new offence.
In her opinion, the marital rape exception is very much an absolute one, something she had explained to the Delhi High Court as well. The language of the exception does not allow any qualification based on the brutality of the crime:
"Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape"Section 375, IPC
[NOTE: Following the Supreme Court's Independent Thought judgment in 2017, the word fifteen is to be read as eighteen]
This is in contrast to Exception 1 to Section 375, which says that "A medical procedure or intervention shall not constitute rape." If a woman is having surgery on her mouth, this does not mean a doctor can insert his fingers or an instrument into her vagina – there is an implicit understanding that consent still comes into play for this exception and so it is not absolute.
But Exception 2 leaves no scope for examining consent or the nature of the offence and has to therefore be considered absolute.
"So long as an absolute exception exists, till the time it is struck down either through a constitutional court or a legislative amendment, a judge can't say I'm disregarding the absolute exception," John said.
While Justice Nagaprasanna suggests that no exemption can be absolute, John points out that there are several absolute exceptions in criminal law, including the prohibition against prosecuting a child under the age of seven years.
"The constitutional scheme may make women equal partners. The exception may do violence to the constitutional scheme. But so long as the exception exists, a single judge cannot say that this exception will take a backseat," John explained.
Once the marital rape exception is struck down by a constitutional court for violating the fundamental rights of married women, then a court can freely frame a charge of rape against a husband accused of forced sexual intercourse.
However, since that has not yet taken place, framing such a charge is not possible in law, and the Karnataka High Court has "jumped a step", in John's opinion.
"It's a nice liberal moment," she said. "I wish courts increasingly use the logic to strike it down. But unless the exception has been struck down, to frame a charge under Section 376, then it is legally untenable."
While this order by the Karnataka High Court is therefore unlikely to become a precedent that can be followed for cases in the future, it is perhaps possible for cases like this to highlight the absurdity of the marital rape exception, and strengthen the arguments for why it needs to be struck down.
"Increasingly with these cases and what it is throwing up, courts must try and see the ludicrous nature of that exception, and force themselves to consider the harm it is doing on a section of the citizenry."Senior advocate Rebecca John