A woman and man being equal under the Constitution of India cannot be made unequal through the exception to a husband from facing rape charge for forcing his wife to sexual acts sans her consent, the High Court of Karnataka observed on Wednesday.
“A brutal act of sexual assault on the wife, against her consent, albeit by the husband, cannot but be termed to be rape... Such acts of husbands scar the soul of the wives. It is, therefore, imperative for lawmakers to now hear the voices of silence,” the court further observed.
It is for the lawmakers to ponder over existence of such inequalities in law, said Justice M. Nagaprasanna in his verdict, which has upheld charges framed against a husband by a trial court in Bengaluru city for allegedly raping and sexually assaulting his wife.
“Not pronouncing”
However, the court made it clear that 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 aforesaid issue. This court is concerned only with the charge of rape being framed upon the husband alleging rape on his wife,” the court said.
Analysing the provisions of the Constitution of India and various laws, the court said, “There is no statute promulgated post the Constitution where there is no application of concept of equality as enshrined in Article 14 of the Constitution of India... If the Constitution mandates equality, the statute ought to follow suit.”
The court also observed, “If a man, a husband, a man he is, can be exempted of allegation of commission of ingredients of Section 375 [rape] of the IPC, inequality percolates into such provision of law. Therefore, it would run counter to what is enshrined in Article 14 of the Constitution.”
“In my considered view, the expression is not progressive but regressive, wherein a woman is treated as a 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,” observed Justice Nagaprasanna.
