Rape is rape, even if husband committed it, says Gujarat HC

The Gujarat high court has said that rape is 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 judgment on December 8, justice Divyesh Joshi had rejected the bail plea of a woman who was accused of abetting alleged sexual assault by her son against his wife. “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’, the judge said.

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 keeps aside forceful sexual intercourse by a man with his own wife from the purview of the rape law. While a set of public interest litigations (PIL) have challenged the validity of the immunity clause on the grounds of discrimination against married women, a split verdict by the Delhi high court in May 2022 is also pending before the top court for a final word.

One of the petitions before the Supreme Court is an appeal by a man whose trial for allegedly 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 last November, 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. 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.”

In August 2023, a case was filed in Rajkot by a woman alleging sexual assault by her husband, father-in-law and mother-in-law. All three were subsequently arrested and chargesheet filed by the Gujarat police under sections 498A(cruelty by husband or relatives), 376(rape), 354(molestation) and 506(criminal intimidation) of the Indian Penal Code.

To be sure, the circumstances of the current case go beyond marital rape in so much as it involves multiple accused. In her complaint, the victim had complained that she was forced to commit sexual acts with her husband that were videographed and uploaded on pornographic sites in exchange for money, and that she was threatened and intimidated by her family members, including both her in-laws.

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, various forms of verbal and physical assault, and harassment. “Such ‘minor’ crimes are, regrettably, not only trivialised or normalised, rather they are even romanticised, 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.