The Karnataka high court on Wednesday refused to drop rape charges framed by a trial court against a man for his wife’s sexual assault, ruling that the marriage doesn’t confer any special male privilege or a license for unleashing a “brutal beast” on the wife.
In March 2017, the woman accused her husband of sodomy, aggravated sexual harassment assault of her 9-year-old daughter, domestic violence, causing hurt. On completing their investigation, the police added section 376 of IPC which relates to punishment for rape, and sections 5 (m) and (l) and section 6 of the Protection of Children from Sexual Offences Act, which relate to repeated penetrative sexual assault.
The trial court eventually framed charges for rape, cruelty by husband and criminal intimidation, prompting the man to appeal against the subordinate court’s decision.
Karnataka High Court
Justice Nagaprasanna refused the man’s plea to drop the rape charges on the ground that section 375 does not criminalise sex between a man and his wife, even if it is forced.
Declining to accept the husband’s plea that he cannot be tried for marital rape under the Indian Penal Code (IPC), Justice M Nagaprasanna said in his verdict,
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.
In my considered view, such an argument cannot be countenanced. 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.
The Karnataka government’s law officer told the court during arguments,
Since the husband is exempted from the allegation of Section 375 of the IPC, even if the facts warrant, it is for this court to consider the same in the light of the exception. But she (law officer) would submit that it is a matter for trial.
The high court noted,
A perusal of the complaint and written communications would send a chilling effect on any human being reading the contents of it. The wife-the complainant, cries foul in no unmistakable terms that she is being brutally, sexually harassed keeping her as a sex slave for ages.
Now, Men Welfare Trust (Men’s Rights NGO) has written to Chief Justice of India expressing their concern on this High Court order, while they are currently the defendants against criminalisation in the ongoing Marital Rape PIL in Delhi High Court. Here are the contents of the letter sent to CJI:
To Hon’ble The Chief Justice Supreme Court of India
Sub: Prayer to take Suo Moto cognizance of patently illegal order, dated 23.03.2022, of Hon’ble High Court of Karnataka allowing framing of charge U/s 376 of IPC against husband
We at Men Welfare Trust (MWT), registered NGO working for the welfare of men in the domain of male suicides, misuse of gender based laws, rehab & shelter for men, men’s health and also running a helpline – 8882498498 – for men in distress, been constrained to write this letter against the order, dated 23.03.2022, of single bench of Hon’ble High Court of Karnataka, in Mr. Hrishikesh Sahoo vs. State of Karnataka and Ors., W.P. No. 48367/2018 C/W 12976/2018, 10001/2018, 50089/2018 upholding order, dated 10.08.2018, of Special Court in Spl.C.C.No.356/2017, to frame charge under section 376 IPC against husband/accused through judicial interpretation.
Although, order of Hon’ble High Court touched upon various other issues, but purpose of this letter is to focus on the aspect of allowing framing of charge under section 376 IPC against husband/accused. And in this aspect alone not just the order patently illegal but against all tenets of criminal jurisprudence. It is expected from Hon’ble High Court, constitutional court, to uphold the current/existing law of country and not be swayed by emotions. But this is exactly what happened during the hearing of case resulting in an order, full of emotions of Hon’ble Judge of High Court, end result law of the land was given total pass.
Suffice to say that Exception 2 to section 375 ensures that sexual violence/assault between spouses cannot be categorized as Rape. It has been a conscious decision on the part of law makers/legislators to keep Exception 2 for various reasons. It has been constant stand of MWT that Exception 2 doesn’t mean that spouse, especially husband, got license to sexually assault wife. Any order/judgment by any court at present allowing husband being charged for IPC 376 is in teeth of Exception 2 effectively meaning intruding into exclusive domain of legislature.
No court must get into the shoes of legislature and create a new offence even indirectly, and this is what precisely Hon’ble High Court of Karnataka did through its order – created a new offence against husband.
The order in question is in clear violation of Article 20(1) of the constitution of India apart from being against the Article 14 & 21 which guarantee equal protection by law and right to life, liberty & dignity respectively.
Further, it is also not the case that an aggrieved wife is remediless, in fact she has been provided with a complete framework of laws to prosecute husband against sexual violence/assault.
More one reads the order of Hon’ble High Court of Karnataka more it exposes the passion and not a road to justice. Despite, there being no dearth of legal minds during the hearing of the case to help the Hon’ble High Court of Karnataka for example Smt. Namitha Mahesh, learned Additional Government Advocate representing respondent No.1-State, Sri. Shanthi Bhushan, learned Assistant Solicitor General of India representing the Central Government, and Sr. Counsel of wife/respondent to the case, it is unfortunate that no one except Sr. Counsel of petitioner/husband argued against framing of charge against husband/accused under section IPC 376 which is a blatant ignorance of the law of the land. It is not even warranted to go into the merit of judicial interpretation as Hon’ble High Court is not entrusted with power under any law to create a new offence. What it is entrusted upon is to dismiss down order or judgement against the law of land.
It is therefore humbly prayed that Hon’ble The Chief Justice of India take Suo Moto cognizance of the patently illegal order, dated 23.03.2022, of Hon’ble High Court of Karnataka as far as framing of charge U/s 376 IPC against husband/accused is concerned and set it aside to prevent the judiciary to enter into the boundaries of legislative domain in the best interest of justice to every citizen of this country.
President – Men Welfare Trust
NOTE: MDO does not support heinous offences such as rape, whether within or outside marriage. However, in a country of 140 billion people where 50% population is male, laws cannot be made on emotions. There needs to be proper guidelines to clearly demarcate the lines between real Vs motivated cases, which will rely solely on testimony of wife. Justice for Women cannot become Tools of Harassment for Men and their families.
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If Judiciary Crosses Line, It Would Become Very Dangerous Precedent | J Sai Deepak Argues Against Criminalisation Of Marital Rape
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