‘A brutal act of sexual assault on the wife, against her consent, albeit by the husband, cannot but be termed to be a rape’, says Karnataka HC

Justice M. Nagaprasanna recommends review of marital exception in IPC by the law-makers.

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JUSTICE M. Nagaprasanna of the Karnataka High Court pronounced a significant order on Wednesday upholding the order of a Sessions Court framing a rape charge against the husband even as Exception 2 to Section 375 (rape) of the Indian Penal Code [IPC] exempts the husband from the purview of the offence of rape. Last month, the Delhi High Court reserved a judgment on a batch of petitions challenging the said exception.

Justice Nagaprasanna held that the exemption of the husband on committing rape cannot be absolute, as no exemption in law can be so absolute that it becomes a license for the commission of a crime against society.

The appellant-husband is facing prosecution under Sections 498A (husband or relative of husband of a woman subjecting her to cruelty), 376 (punishment for rape), 354 (assault of criminal force to woman with intent to outrage her modesty) and 506 (punishment for criminal intimidation) of the IPC, and Section 5(m) and (l) (aggravated penetrative sexual assault) of the Protection of Children from Sexual Offences [POCSO] Act. The charges under POCSO Act were levelled because the appellant allegedly used to touch private parts of his minor daughter, and would also commit rape with his wife in front of his daughter.

The wife, in her complaint, inter alia alleged that she had become a sex slave to her husband since the day of the marriage. Her husband would force her to have unnatural anal sex and oral sex by imitating pornographic films. She also alleged that her husband did not leave her from forceful sex even during pregnancy. Besides, she alleged that her husband forced her to have unnatural sex in front of her daughter and on many occasions, he had beaten her and had forcible sex with her.

During the course of the investigation, the police dropped the charge under Section 377 (unnatural offences) of the IPC, but added section 376 of the IPC. The appellant-husband sought to drop the charge of rape. His application was rejected by the Sessions Court. Challenging the Sessions Court order, he approached the High Court, besides challenging the constitutional validity of clauses of presumption under Sections 29 and 30 of the POCSO Act. Section 29 of the Act provides for the presumption as to certain offences under the Act, and section 30 provides for the presumption of culpable mental state. In other words, these two sections reverse the burden of proof from the prosecution to the accused.

On section 376 of the IPC 

Justice Nagaprasanna, in his decision, extensively referred to the history of section 375 of the IPC. From the code propounded by Lord T.B. Macaulay, Law Member of the British government's Council of India, in 1837, to the 2013 amendment in the IPC post the Nirbhaya case. He said the Constitution, a fountainhead of all statutes, depicts equality. However, the IPC practices discrimination because every other man indulging in offences against women is punished for those offences. But, when it comes to section 375 of the IPC, the exception springs. He found the statutory immunity against marital rape not progressive but regressive, wherein a woman is treated as a subordinate to the husband, a concept that abhors equality.

"A man who is well acquainted with a woman performs all the ingredients as is found in pre or post amendment to Section 375 of the IPC, can be proceeded against for offences punishable under Section 376 of IPC. Therefore, a man sexually assaulting or raping a woman is amenable to punishment under Section 376 of IPC. 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", Justice Nagaprasanna opined.

Since the issue of the validity of the marital rape immunity was not before the court, these observations at best can be regarded as obiter. On the facts of the case, the Court held that perusal of the complaint filed by the wife 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. The contents of the complaint are an outburst of tolerance of the wife of the brutal acts of the petitioner. It is akin to the eruption of a dormant volcano. In the teeth of the facts, as narrated in the complaint, in my considered view, no fault can be found with the learned Sessions Judge taking cognizance of the offences punishable under Section 376 of IPC and framing a charge to that effect", Justice Nagaprasanna held while upholding the rape charges against the appellant.

He further held that if the allegation of rape is removed from the block of offences alleged, it would, in the peculiar facts of this case, be doing tremendous injustice to the complainant-wife and would amount to putting a premium on the carnal desires of the petitioner.

On sections 29 and 30 of POCSO Act

Considering the precedents wherein the Supreme Court and the Karnataka High Court have upheld the constitutional validity of similar provisions in other special enactments, the counsel of the accused chose not to argue this point. Justice Nagaprasanna thus did not give any determined findings on the validity but held that the prosecution has to prove the foundational facts beyond all reasonable doubt and cannot rest its case on the preponderance of probability, merely because the statute imposes reverse burden upon the accused on proving innocence in place of the prosecution proving the guilt.

Which court should try the offences? 

The offences under POCSO Act are tried by specials court under the Act. The accused argued that the trial of the offences under the IPC and the POCSOAct should be segregated. He contended that the IPC offences should be tried by the designated court and the POCSO Act offences by the special court.

Justice Nagaprasanna found the argument without merit. He opined that the mother and the child, both are victims of brutal acts on the part of the petitioner. It is the mother who has complained against the petitioner for the offences committed by him both on herself and her daughter. The mother is also privy to what is narrated in the complaint. Both the cases are triable only by the Sessions Court, and the judge who is now to try both the cases is the Sessions Judge.

Relying upon the judgment of the Supreme Court in Vivek Gupta vs. CBI (2003), Justice Nagaprasanna held that a special court under the POCSO Act can also try offences under the IPC.

Whether charges under section 377 of IPC be included

The Court was also considering the petition filed by the wife against the order of the trial court rejecting the application filed by the prosecution to include a charge under section 377 of the IPC. Disapproving the trial court's order, Justice Nagaprasanna held that from the complaint and the charge sheet filed, what can unmistakably be inferred is that the petitioner had indulged in acts of unnatural sex. This is the specific allegation against the petitioner. Therefore, the charges framed ought to have been inclusive of section 377 of the IPC also, he held.

On allegations under POCSO Act

Justice Nagaprasanna held that the complaint filed by the wife unmistakably highlight the actions of the accused which would touch upon offences under the POCSO Act. "Looking at the complaint, allegations as also the written communications of the child which cannot be extracted and made a part of the order, would all require a trial against the petitioner for him to come out clean by projecting such defence as is available", he added.

Justice Nagaprasanna eventually summarized his findings thus:

• Charge framed against the husband for alleged offence punishable under section 376 of the IPC for alleged rape of his wife, in the peculiar facts of this case, does not warrant any interference. It is a matter of trial.
• Other offences alleged against the petitioner, the ones punishable under sections 498A, 354, 506 of the IPC are clearly brought out in the complaint and in the charge sheet. This is again a matter of trial
• The prosecution, notwithstanding presumption against the accused under sections 29 and 30 of the POCSO Act, has to prove foundational facts beyond all reasonable doubt.
• The charge framed by the Sessions Court is to be altered by inclusion of offence punishable under Section 377 of the IPC owing to peculiar facts of this case.
• The designated Court hearing cases relating to offences under the POCSO Act can try the offences under the IPC as well, in the facts of the case.
• Allegations against the petitioner-husband for offences punishable under the POCSO Act for alleged sexual acts on the daughter cannot be interfered with. It is yet again a matter of trial.

In his parting words, Justice Nagaprasanna, urged the lawmakers to ponder over the inequalities that the Exception 2 to Section 375 perpetuate.

"Woman and man being equal under the Constitution cannot be made unequal by Exception-2 to Section 375 of the IPC. It is for the lawmakers to ponder over existence of such inequalities in law", the judge said.

He added that 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 state of the wife, and 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", he said.

Click here to view the Karnataka High Court's order.