In May 2024, the Madhya Pradesh High Court held that consent of the wife is immaterial; In March 2022, the Karnataka High Court ruled that marital rape is a crime; If the wife is above 18 years marital rape is not a crime for Allahabad High Court. For Kerala High Court , Marital rape can be a ground for divorce.
While a batch of petitions are being heard by the Supreme Court with regard to the criminalisation of marital rape, it is pertinent to see how various High Courts in India have dealt with this issue in the recent past. The facts of these cases give the sordid reality of marital rape and the silent suffering of women in India .
A cursory look through various judgments by the High Courts in India makes it apparent that the judiciary has multiple views on marital rape. Most of the High Courts that dealt with cases of marital rape adhered to the established view that a husband cannot be prosecuted for raping his wife; however, a few High Courts —namely Kerala, Karnataka, and Gujarat— stood out by expressing alternative views.
Marital rape ground for divorce: Kerala High Court
“Treating a wife’s body as something owing to the husband and committing sexual acts against her will is nothing but marital rape.” The Kerala High Court made this observation in an appeal filed by a husband against the divorce granted by a family court on the grounds of cruelty. The Court further opined, “Merely because the law does not recognize marital rape under penal law, it does not inhibit the court from recognizing the same as a form of cruelty to grant divorce. We, therefore, are of the view that marital rape is a good ground to claim divorce.”
The division bench of the High Court, comprising Justice A. Muhamed Mustaque and Justice Kauser Edappagath, found no reason to disbelieve the wife’s arguments on forced and cruel sex by her husband. “The respondent (the wife) has deposed that even during her pregnancy, the appellant abused her. She also deposed that the appellant committed forceful sex when she was sick and bedridden. She also deposed that she was subjected to the worst form of sexual perversion and unnatural sex against her will. The respondent deposed that the appellant even did not spare her for sex on the day the appellant’s mother expired. She also stated that the appellant forced her to have sex in front of their daughter.” The gruesome details of rape by the husband are recorded in the judgment.
Husband cannot be exempted from prosecution for rape: Karnataka High Court
In March 2022, the Karnataka High Court refused to quash the charges of rape pending against a husband, along with other charges of domestic violence. The Karnataka High Court dismissed the argument of his counsel that if husband cannot be prosecuted for rape committed on wife. A single bench of Justice M. Nagaprasanna held that Exception 2 to Section 375 of the Indian Penal Code—which exempts a husband from the offence of rape against his wife—is not ‘absolute’.
“A man is a man; an act is an act; rape is rape, be it performed by a man, the ‘husband,’ on the woman, ‘wife,’ said the Karnataka High Court. “The 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 a brutal beast. If it is punishable for a man, it should be punishable for a man, albeit the man being a husband.” These remarks made by the Karnataka High Court have raised hopes among women’s rights activists in India who stand for criminalising marital rape.
Marital rape is a crime: Karnataka Government
While the husband went to the Supreme Court with an appeal against the order of the Karnataka High Court, the Government of Karnataka took a stand in favour of criminalising marital rape. In December 2022, the Karnataka Government submitted an affidavit stating that the decision of the Karnataka High Court ordering the trial of a man charged with raping his wife was correct. The Government took the position that whether he was guilty of the offence was subject to trial, but he should not be absolved before trial solely for the reason that the husband is exempted from rape charges under the exemption clause of 375 IPC if the victim is his own wife. The Karnataka Government also referred to the report of the Justice Verma Committee, which recommended the removal of the exception clause for husbands and thus for the criminalisation of marital rape.
It is noteworthy that the Karnataka Government stood in favour of criminalising marital rape while the Union Government took a position in support of protecting husbands from rape charges by maintaining the exception clause of Section 375 of the IPC. The Union Government, in an affidavit, held the view that marital rape cannot be criminalised.
Consent is immaterial: Madhya Pradesh High Court
In May 2024, the Madhya Pradesh High Court held that marital rape cannot be considered an offence punishable under law. An FIR was registered against a husband under Section 377 of the IPC for having forced ‘unnatural sex’ on his wife. The court held that in an act of sex between a husband and wife, the consent of the woman is immaterial. “Rape includes insertion of the penis in the mouth, urethra, or anus of a woman, and if that act is committed with his wife, not below the age of fifteen years, then consent of the wife becomes immaterial,” said the judgment pronounced by the single bench of Justice G. S. Ahluwalia.
Though the forceful entry of the penis into the body of another person would be a crime, the same would not be applicable if the victim is the wife of the man, according to the court.
“In view of the amended definition of ‘rape’ under Section 375 of the IPC, by which the insertion of the penis in the anus of a woman has also been included in the definition of ‘rape,’ and any sexual intercourse or sexual act by the husband with his wife not below the age of fifteen years is not a rape, then under these circumstances, the absence of consent of the wife for unnatural acts loses its importance. Marital rape has not been recognised so far,” said Justice Ahluwalia in the judgment pronounced on May 1, 2024.
This is not the first judgment in which the Madhya Pradesh High Court has held the consent of the wife ‘immaterial.’ The Court made a similar judgment in September 2023 in a petition moved by former Cabinet Minister and sitting MLA Umang Singhar of Congress. His petition sought the quashing of the FIR registered against him on the complaint of his wife for offences of rape and unnatural sex, in addition to the offence of domestic violence. The single bench of the High Court, Justice Sanjay Dwivedi, held that as the husband is protected under the exception clause of Section 375 of the IPC, any form of penal penetration would not constitute an offense. Referring to the Supreme Court judgment in the Navtej Singh Johar case,
Justice Sanjay Dwivedi declared that “if the offender and victim are husband and wife, then consent is immaterial, and no offense under Section 375 is made out, and as such there is no punishment under Section 376 of the IPC.”
‘If the wife is 18 years or more, no penalty for rape by husband’: Allahabad High Court
The Allahabad High Court followed suit while considering an appeal by the accused husband against the conviction given by a trial court for cruelty against the wife, including the act of sodomy and forced oral sex. The trial court found that such forced acts of sex constituted marital misconduct, which amounted to cruelty to the wife. In the appeal against this conviction, the Allahabad High Court acquitted the husband of the relevant charges of rape under Sections 377 and 375, citing that marital rape is not a crime in India if the wife is 18 years or more. However, the High Court upheld the conviction under Sections 498A and 323 of the IPC, validating the offenses of cruelty and domestic violence. The single bench of the Allahabad High Court, Justice Ram Manohar Narayan Mishra, relied on the judgment pronounced by the Madhya Pradesh High Court in the MLA’s case as well as the Supreme Court judgment in ‘Independent Thought vs. Union of India’.
‘Rape is rape, be it performed by a husband against his wife’: Gujarat High Court
Amidst many other High Courts settling their positions in line with protecting husbands from rape charges, the Gujarat High Court made this landmark observation while pronouncing an order denying bail to a mother-in-law who was alleged to have abetted rape on the complainant by her husband. The order, which came in December 2023, refers to the legal status of marital rape as an offence in countries such as the UK, USA, and Australia.
According to the complaint raised by the woman/wife, both her mother-in-law and father-in-law forced her husband to take nude videos and photographs of her. It was also alleged that the mother-in-law and father-in-law installed CCTV in her bedroom, and they used to watch the sexual acts between her and her husband. Her husband allegedly uploaded such videos to a porn site to earn money, which was allegedly supported by the mother-in-law.
“Marital rape is illegal in 50 American States, 3 Australian States, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland, Czechoslovakia, and several others. In the United Kingdom, which the present code largely draws from, has also removed the exception (given to husbands). A man sexually assaulting or raping a woman is amenable to punishment under Section 376 of the IPC. In most cases of such a nature, the usual practice is that if the man is the husband, performing the very same acts as that of another man, he is exempted. In my considered view, the same cannot be countenanced. A man is a man; an act is an act; rape is rape, be it performed by a man, the husband, on the woman, the wife,” Justice Divyesh A. Joshi of the Gujarat High Court made these observations while dismissing the petition for bail.
Split verdict by the Delhi High Court
The division bench of the Delhi High Court brought a split verdict in May 2022 on a batch of petitions seeking the removal of the exception clause of Section 375 of the IPC, exempting husbands from charges of rape by their wives. In the split verdict, Justice Rajiv Shakdher held that such an exemption allowing husbands to rape their wives is unconstitutional. On the other hand, Justice C. Hari Shankar held that the exemption is not violative of the constitution, which was based on ‘an intelligible differentia.’ He held that the removal of the exemption clause would create a class of new offenses, which falls under the power of the legislature and not the judiciary. However, Justice Rajiv Shakdher disagreed with this stance, stating that the removal of the exception would only enlarge the class of offenders and would not create any new offenses.
Originally published here