Ahmedabad:The Gujarat High Court has said that rape remains a grave offence, even if it is committed by the victim’s husband, and pointed to marital rape being illegal in several countries across the world.
In a judgement on December 8, where he rejected bail for a man accused of rape, Justice Divyesh Joshi of the Gujarat High Court said that “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’”.
To be sure, the Supreme Court of India is currently adjudicating a clutch of petitions that relate to the exception to section 375 of the Indian Penal Code, which exempts forceful sexual intercourse by a man with his own wife from the offence of rape. While a set of public interest litigations(PIL) have challenged the validity of the immunity clause on the grounds of discrimination against married women who were sexually assaulted by their husbands, the split verdict by the Delhi High Court in May 2022 is also pending before the top court for final word.
One of the petitions before the Supreme Court is an appeal by a man whose trial for raping his wife was approved by the Karnataka High Court in March 2022. In this matter, the then BJP ruled Karnataka government filed its affidavit in November last year, supporting the criminal prosecution of the husband.
In his order on December 8, Justice Joshi said, “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. In the United Kingdom, which the present Code largely draws from, has also removed the exception pursuant to a judgment rendered by the House of Lords in R v. R in the year 1991. Therefore, the Code that was made by the rulers then, has itself abolished the exception given to husbands.”
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In August 2023, a case was filed in Rajkot where a woman had alleged sexual assault by her husband, father-in-law and mother-in-law. The husband and son of the victim were subsequently arrested and a chargesheet filed by the Gujarat police.
The high court said that the nature of sexual violence was diverse and a number of incidents fall under the broad spectrum of sexual violence such as stalking, eve teasing, various forms of verbal and physical assault, and harassment. “Such “minor” crimes are, regrettably not only trivialised or normalized, rather they are even romanticized and therefore, invigorated in popular lore such as cinema. These attitudes which indulgently view the crime through prisms such as ‘boys will be boys’ and condone them, nevertheless have a lasting and pernicious effect on the survivors,” the 13 page order said.
