The Karnataka Government has supported the prosecution of a husband in a case for marital rape. The State has filed an affidavit in the Supreme Court supporting a Karnataka High Court judgment which sustained the charges framed against a husband under Section 376 IPC for forcible sex with wife.

In this connection, it is worthwhile to note that the Central Government had refrained from taking a clear stand on criminalizing marital rape in the petitions filed before the Delhi High Court challenging the exception 2 to Section 375 IPC.

The Karnataka High Court had pronounced the verdict while refusing to quash the FIR for marital rape. A single bench of Justice M Nagaprasanna held that the Exception 2 to Section 375 of the Indian Penal Code - which exempts a husband from the offence of rape against his wife - is not "absolute". "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 High Court had observed.

Without making any pronouncement on the constitutionality of the marital rape exception, the High Court held that the exemption of the husband on committal of such assault/rape, in the peculiar facts and circumstances of this case, 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. 

Aggrieved by the High Court verdict, the husband filed the special leave petition before the Supreme Court. The Supreme Court bench comprising the former Chief Justice of India NV Ramana, Justice Krishna Murari and Justice Hima Kohli had passed an order of ad-interim stay of the High Court's judgment.

The affidavit filed by the State submits that the Karnataka High Court was correct in its decision of ordering the trial of a man for allegedly raping his wife. It further states that whether the charge finally stands or not is a matter of trial and that the accused in the case cannot be absolved at this stage despite the immunity against marital rape provided to husbands under IPC.

The affidavit also provides for the suggestions recommended by the Justice JS Verma committee, which was set up to propose amendments in criminal laws. The committee received around 80,000 suggestions and finalised its 644-page report in 2013, proposing that "the exception for marital rape be removed" and the law must "specify that a marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation".

"The High Court of Karnataka has considered all the questions of law involved in the present petition and it does not require any interference by the Supreme Court", the State Government's affidavit stated while seeking dismissal of the husband's challenge against the HC verdict.

This matter has been clubbed along with the petitions challenging the Delhi High Court's split verdict in the pleas to criminalize marital rape.

Case Title: HRISHIKESH SAHOO And STATE OF KARNATAKA & Ors | SLP(Crl) 4063/2022

Why Karnataka marital rape verdict is problematic

The recent judgment of the Karnataka High Court on marital rape has ignited a national debate. In Hrishikesh Sahoo v. State of Karnataka, Justice M Nagaprasanna held that “in the peculiar facts and circumstances” of the case, when the husband “rapes” a wife, he cannot claim the protection of exception enumerated under Section 375 of the Indian Penal Code (IPC), since the exemption is not “absolute”.

The court said that “no exemption in law can be so absolute that it becomes a license for commission of crime against society”. In the words of the court, “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”’.

This exception clause is a colonial law that treats the wife as mere chattel. It reflects the era of men dominating or enslaving women. This provision, originally designed by Macaulay and later incorporated in 1860 in the Penal Code, cannot pass the constitutional muster. This archaic clause runs against the ideas of equality, dignity and freedom enshrined in the Constitution. It negates the very concept of gender equality and democracy within the family. It particularly attacks the independence, privacy and autonomy of married women. It is high time that this patriarchal remnant is struck down by the court.

The Karnataka verdict pleads for “the rights of women, protection of women and their equal status to that of a man without exception”. The court is correct. The court is also correct in noting the recommendation of the Justice Verma Committee (2013) that called for deletion of this exception from Section 375 to restore the principles of constitutional morality into our penal laws. There can be no legal sanction for a husband to commit a heinous crime. In the words of the court, the “institution of marriage does not confer, cannot confer and …  should not be construed to confer any special male privilege or a license for unleashing of a brutal beast”. Marital rape is a crime in many nations like Canada, Israel, France, Sweden, Denmark, Norway, and Poland, notes the judgment.

Still, the verdict is troubling. A judgment needs to be realistic, contextual and sensible. What is acceptable at the macro level should be equally acceptable at the micro level. What is just in doctrinal terms needs to be just in practice as well. Breach of this principle could lead to chaos.

The case before the Karnataka HC was not one challenging the constitutional validity of the exception under Section 375 of the IPC. Nor did the court strike down the said exception. The court, on the other hand, examined only a given situation, where the police registered the crime and the trial court took cognisance of the crime, i.e., the offence of rape, allegedly committed by the husband on his wife. The accusations are, no doubt, shocking. The narration is terrifying.

Other heinous offences also are alleged. But the ultimate point is, going by the plain meaning of the text of the IPC provision, as it then stood, and as it now stands, a husband cannot be termed guilty of rape of his adult wife. Article 20(1) of the Constitution says that “no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence”. What was not an offence at the time of its commission cannot be termed as an offence by way of an interpretive process. Such a ‘constitutional interpretation’ can only be unconstitutional.

In the Karnataka episode, the court even said that it is for Parliament to consider the question of changing the law. But while considering “the charge of rape being framed upon the husband alleging rape on his wife” in the given case, the court pronounced against the express words in the Penal Code. This is an alarming situation, by any yardstick of statutory interpretation or constitutional adjudication. This is simply impermissible in a system governed by the principles of Rule of Law.

There is a marked difference between decriminalising an act labelling it as unconstitutional and criminalising it on the ground of unconstitutionality. The Supreme Court adopted the former approach while decriminalising homosexuality (Navtej Singh Johar v. Union of India, 2018) and Adultery (Joseph Shine v. Union of India, 2018). In the process, it also set free certain people from criminal charges.

However, while criminalising an act that was not criminal according to a statute, the court not only acts against the mandate of Article 20 but also meddles with liberty of the individual. The former enhances the citizen’s freedom by relying on the Constitution whereas the latter curtails it, by negating the Constitution. The court thereby enters the forbidden zone of penal legislation. The Karnataka verdict itself says that the process of legislation is beyond the judicial terrain.

The functional dilemma of the court gave way to a convoluted judgment. In the case, the legally guaranteed rights of the accused were at stake. A nation’s democratic index depends heavily upon its treatment of those who are caught in the web of penal laws rather than the privileged. The Karnataka verdict is, therefore, problematic and disturbing.