This month, the Karnataka High Court gave another landmark judgment after the hijab verdict last week. This time the court refused to rescind rape charges filed by a wife against her husband. The verdict was given by a single judge bench headed by Justice M Nagaprasanna of the Karnataka High Court, in which he said, “The contention of the learned senior counsel that if the man is the husband, performing the very same acts as that of another man, he is exempted. 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’.” However, the judgment also clearly defines that the orders are to frame charges against the husband as it shall be in a rape case; whether marital rape should be recognized as an offence is something that the legislature should decide.
What is defined as Rape?
This definition of Rape is according to the Indian law, which in Section 375 of Indian Penal Code (IPC) clearly defines rape as “sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped or is of unsound mental health and in any case if she is under 18 years of age.” Although, there is one critical exemption in this section: “Sexual intercourse by a man with his wife who is above the age of 18, is not sexual assault.”
What does the Central government think about this?
Last month, the Delhi High Court sought an answer from the government regarding the criminalizing of marital rape. To which, the Solicitor General of India Tushar Mehta submitted that the government is neither in favour nor against the striking down of the immunity granted to the husband under IPC.
The Solicitor also said that the government’s stand on this is already being shared through the last affidavit submitted to the court. It seeks time and wants to take a more consultatory process before making any decision. The government also mentioned that criminalizing marital rape would have “far-reaching socio-legal implications in the country and a meaningful consultative process with various stakeholders and state governments is needed.” However, in another affidavit filed in 2017, the government had a different stance. Clearly, it stated that “marital rape cannot be made a criminal offence as it could become a phenomenon which may destabilize the institution of marriage and become an easy tool for harassing husbands”.
Courts on the issue
In 2022, besides the verdict of the Karnataka High Court, Delhi High Court conducted marathon hearings on a bunch of petitions, all seeking criminalization of marital rape. Justices Rajiv Shakdher and C Hari Shankar headed the bench on the matter. NGOs like RIT Foundation and All India Democratic Women’s Association have been questioning the constitutionality of the exemption given in the IPC.
