Rape even by husband is rape: Karnataka HC

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The Constitutionality of the marital rape exception is currently under challenge before the Delhi and Gujarat High Courts…reports Asian Lite News

In a ruling that could help shape the debate on marital rape, the Karnataka High Court Wednesday refused to quash rape charges filed by a wife against her husband, defying the exception in law, and, instead, called on lawmakers to hear the “voices of silence.”

“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’,” a single-judge bench of Justice M Nagaprasanna of the Karnataka High Court said. The “age-old…regressive” thought that “husbands are the rulers of their wives, their body, mind and soul should be effaced,” the court said.

While the court did not explicitly strike down the marital rape exception, it forced the married man to face trial for rape charges brought by his wife. The husband had moved the High Court after a trial court took cognisance of the offence under Section 376 (rape).

IPC Section 375 that defines rape carries a crucial exemption: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”

In 2018, a similar case was brought before the Gujarat High Court in which a married man sought quashing of the rape case against him filed by his wife. Although the HC quashed the FIR to remove the rape charges, it gave a lengthy reasoning on the need to criminalise marital rape.

The Constitutionality of the marital rape exception is currently under challenge before the Delhi and Gujarat High Courts.

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 of a brutal beast. If it is punishable to a man, it should be punishable to a man albeit, the man being a husband,” Justice Nagaprasanna said.

“A brutal act of sexual assault on the wife, against her consent, albeit by the husband, cannot but be termed to be a rape. 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,” the court said.

This ruling came in the course of a judgment on a petition filed in 2018 by a 43-year-old man for dropping of charges of rape and sexual assault on a child brought against him by police in Bengaluru on the basis of a complaint filed by his wife in March 2017 after a marriage of 11 years.

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