Marital Rape ought to be a crime: Justice Pardiwala of Gujarat HC [Read judgment]

In a judgment that has garnered a lot of attention over the past week, the Gujarat High Court has urged that marital rape be made a punishable offence..Justice JB Pardiwala, in his 150-page judgment, has also made a number of pertinent observations regarding sexual offences and the rights of married women..The observations were made in case wherein a woman had filed an FIR against her husband and his parents, alleging the offences of the Sections 376, 377, 498A, and 114 of the Indian Penal Code. It was the case of the informant that her husband used to force her to indulge in oral sex with him, and had sexual intercourse with her forcibly, and against her consent..The husband subsequently filed an application before the High Court, seeking quashing of the FIR..Appearing before the High Court on behalf of the informant, advocate Rajesh Shah contended that it was a case of marital rape, stating that it involved non-consensual acts of violent perversion by a husband against the wife where she is abused physically and sexually. Arguing for the accused, Jigar Gadhavi argued that in India, marital rape is not recognized and the same is not an offence. Public Prosecutor Mitesh Amin contended that there was no solid case for quashing of the first information report..After hearing the arguments, Justice Pardiwala framed the following questions to determine the merits of the case:.(I) Whether a husband can be prosecuted for the offence of rape punishable under section 376 of the IPC at the instance of his wife?.(II) Whether a wife can initiate proceedings against her husband for unnatural sex under section 377 of the IPC?.(III) Whether there is any concept of marital rape?.(IV) Whether the acts complained by the wife in her first information report would fall within the ambit of “unnatural offence” within the meaning of section 377 of the IPC?..(V) Whether the acts of sexual assault or sexual perversion as alleged by the wife against her husband would constitute physical and mental cruelty within the meaning of section 498A of the IPC?..(VI) Whether a person can be held guilty of outraging the modesty of his own wife?.At the outset, Justice Pardiwala acknowledged that Section 375 does not recognize the concept of marital rape, stating that sexual intercourse between a husband and wife would not constitute an offence of rape even if it was by force, violence or against her wishes..The judge then went on to explore the applicability of the Section 377 to the case at hand..Section 377.A long discussion on the Supreme Court’s 2014 judgment in Suresh Kumar Koushal vs. Naz Foundation & Ors ensued, after which the Court held,.“…Section 377 IPC does not criminalize a particular class of people or identity or orientation. It merely identifies certain acts which if committed would constitute an offence….Thus, when the husband is alleged to have forced his wife for oral sex and actually indulges into the same, the same would constitute an offence under section 377 IPC. To put it in other words, having regard to the decision of the Supreme Court, referred to above, section 377 IPC would be applicable in case of heterosexual couples, wherein the husband has compelled the wife into carnal penetration of the orifice of the mouth…”.However, the Court did not feel that the current case fell under the ambit of Section 377. After relying on a number of case on the issue, the Court held,.“…if a person accused of this offence, voluntarily had carnal intercourse with any man, woman or animal with a little bit of penetration against the order of nature such an act would fall within the clutches of the section in committing the unnatural offence liable to be punished thereunder. In this view of the matter, except the sexual perversions of sodomy, buggery and bestiallity, all other sexual perversions, as catelogued above, would not fall within the sweep of this section….…Thus, in the aforesaid view of the matter, I have reached to the conclusion that no case is made out against the accused-husband so far as the offence punishable under sections 376 and 377 of the IPC is concerned.”.Section 498A.As a precursor to its discussion on marital rape, the Court then delved into spousal relations and what sort of behavior attracts Section 498A of the IPC. It was observed,.“If between the two spouses one spouse wants healthy and normal sexual relations and the other is desirous of having perverted sexual relations, such as cunnilingus and fellatio as alleged by the wife in the present case, then the normal sexual relation between the spouses which forms the basis of a happy marital life, would be floundered on the bed-rocks of sexual aversion on the part of the spouse who is normal and not deviant, and the insistence of the other spouse who is psychologically so disturbed as not to enjoy the normal sexual relations, would tantamount to mental as well as physical cruelty..Some innocuous sado-masochistic practices may at times form an integral part of the marital relations but if they degenerate into practices which may cause physical harm or psychological trauma to one of the partners, or if they tend to verge on the pathological (sic) they would undoubtedly amount to physical and mental cruelty.”.Section 354.The Court next shifted its focus on whether a man can be held guilty of outraging the modesty of his own wife, as per Section 354 of the IPC. With a view to answering the question, the Court highlighted certain specific instances by which the same could happen..“(I) If the husband expresses his affection towards his wife in public in an unkind manner such conduct will (a) amount to an indecent behaviour; (b) be against ‘public morality’; and (c) amount to an outrage under section 354..(ii) In case the husband and wife are alone, it may be essential that some liberty be permitted to the spouses with regard to certain acts which are a necessary part of the conjugal relationship. Certain overtures or acts of affection and love in private by the husband, which may not be acceptable to the wife in public, will have to be conceded as not amounting to outrage under the provision..(iii) Highly personal acts of love and affection by the husband which may or may not be liked by the wife, if done in public, may go against public morality and fall under section 354 as all its essential ingredients are present in such a situation..(iv) Such personal acts done by the husband as are not acceptable to the wife even in private and also not approved by society, should also fall under the scope of section 354. Today no woman or society would approve of perverted sexual acts as being a legitimate part of the spousal relation.”.It was also held that the husband’s knowledge, intention or the wife’s “developed sense under the modern set up” would become irrelevant while determining whether or not a husband has outraged the modesty of his wife. The Court went on to enumerate how outraging the modesty of a woman would differ according to culture and custom..“For instance, uplifting the veil of a woman’s pardah in presence of her father-in-law, she being a village lady, would be justly regarded as an indecent act outrageous to her modesty. Pulling of hair or hand, pushing, obstructing the way, waylaying, may all come within the mischief of the provision. Similarly, hurting her by putting a strong arm-hold around her neck or waist will be covered by the scope and ambit of section 354. Catching hold of a woman by her arm and dragging her may also amount to an outrage irrespective of the fact that the act is done in the presence of others or not (principle derived from…Throwing her on the ground is outrageous…”.Marital Rape.Finally, the Court gives its view on what ought to be the legal status of the marital rape. Calling it a “widespread problem” that has received little attention from society in the past, Justice Pardiwala states that it has been made an offence in fifty American states, and in Australia, Canada, New Zealand, and a host of European countries..The judge also calls out the government for failing to criminalize the act..“The government is hesitant to criminalize the marital rape because it would require them to change the laws based on the religious practices, including the Hindu Marriage Act, 1955 which says a wife is duty bound to have sex with her husband…It was, therefore, felt that if marital rape is brought under the law, the entire family system will be under great stress and the committee may perhaps be doing more injustice….…It is high time that the legislature once again intervenes and go into the soul of the issue of marital rape. Marital rape is a serious matter though, unfortunately, it is not attracting serious discussions at the end of the Government.”.On the rights of married women, the Court held,.“A woman is no longer the chattel–antiquated practices labeled her to be. A husband who has sexual intercourse with his wife is not merely using a property, he is fulfilling a marital consortium with a fellow human being with dignity equal to that he accords himself. He cannot be permitted to violate this dignity by coercing her to engage in a sexual act without her full and free consent.”.It was also held that a husband who feels aggrieved by his indifferent or uninterested wife’s absolute refusal to engage in sexual intimacy may legally seek the court’s intervention to declare her psychologically incapacitated to fulfill an essential marital obligation. But sexual intimacy cannot be demanded from her coercively or violently..“Husbands need to be reminded that marriage is not a license to forcibly rape their wives. A husband does not own his wife’s body by reason of marriage. By marrying, she does not divest herself of the human right to an exclusive autonomy over her own body and thus, she can lawfully opt to give or withhold her consent to marital coitus. A husband aggrieved by his wife’s unremitting refusal to engage in sexual intercourse cannot resort to felonious force or coercion to make her yield.”.Addressing the concerns that criminalizing marital rape would lead to a slew of frivolous complaints filed in order to harass innocent husbands, the Court held that there are enough safeguards in place to prevent the same..“In this regard, let it be stressed that the safeguards in the criminal justice system are in place to spot and scrutinize fabricated or false marital complaints, and any person who institutes untrue and malicious charges, can be made answerable in accordance with law. However, this fear, by itself, is not sufficient to just ignore the marital rape.”.The Court concludes its discussion on the subject by stating that the law must uphold the bodily autonomy of all women, irrespective of their marital status, and that,.“Women should not have to tolerate rape and violence in the marriage. The total statutory abolition of the marital rape exemption is the first necessary step in teaching societies that dehumanized treatment of women will not be tolerated and that the marital rape is not a husband’s privilege, but rather a violent act and an injustice that must be criminalized.”.As regards the case itself, the Court partly allowed the quashing of the FIR as regards Sections 376 and 377, but directed the investigating officer to add the offence of Section 354 to the FIR..The Gujarat High Court’s observations on marital rape come at a time when the Delhi High Court is in the process of hearing a challenge calling for its criminalization..Read judgment:

Marital Rape ought to be a crime: Justice Pardiwala of Gujarat HC [Read judgment]

Aditya AK

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