Rape is rape even if done by husband: Gujarat High Court

A rape is a rape even if it is committed by the victim's husband, the Gujarat High Court recently observed while highlighting how several countries have criminalised marital rape [Anjanaben Modha vs State of Gujarat]..Single-judge Justice Divyesh Joshi in his December 8 order, pointed out that marital rape is illegal in fifty American States, three Australian States, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia and several other nations."In the United Kingdom, which the Indian Penal Code (IPC) largely draws from, has also removed the exception (to section 376 which exempts husband from rape charge) pursuant to a judgment in 1991. Therefore, the IPC that was made by the rulers then, has itself abolished the exception given to husbands," the Court said. Therefore, a man sexually assaulting or raping a woman, is amenable to punishment under Section 376 of the IPC, the order stated."In most of the cases of such a nature, the usual practice is that if the man is the husband, performing the very same acts that of another man, he is exempted. In my considered view, the same cannot be be countenanced. A man is a man; an act is an act; rape is rape, be it performed by a man the 'husband' on the woman the 'wife'," Justice Joshi underlined. .Further, the Court spoke about the need to change the social attitude of 'boys will be boys' which trivialises or normalises the offences of eve teasing and stalking.The Court pointed out that sexual violence is varied in degree and at the most aggravated level is rape with or without attendant violence. However, there are substantial number of incidents which fall within the rubric of sexual violence, which amounts to offences under various penal enactments."The outlaw behaviours such as stalking, eve-teasing, shades of verbal and physical assault and harassment. Social attitudes typically characterise this latter category of crimes as 'minor offences.' Such crimes are regrettably not only trivialised or normalised rather they are even romanticised and therefore, invigorated in popular lore such as cinema. These attitudes, which indulgently view the crime through prisms such as 'boys will be boys' and condone them, nevertheless have a lasting and pernicious effect on the survivors," Justice Joshi underscored. The Court therefore, opined that the 'silence' on gender violence is needed to be broken."Gender violence is most often unseen and is shrouded in a culture of silence. The causes and factors of violence against women include entrenched unequal power equations between men and women that foster violence and it's acceptability, aggravated by cultural and social norms, economic dependence, poverty and alcohol consumption," the judge observed.In India, the court said, the culprits are often known to the women but the social and economic 'costs' of reporting such crimes are high."General economic dependence on family and fear of social ostracisation act as significant disincentives for women to report any kind of sexual violence, abuse or abhorrent behaviour. Therefore, the actual incidence of violence against women in India is probably much higher than the data suggests and women may continue to face hostility and have to remain in environments where they are subjected to violence. This silence, needs to be broken," the Court stressed. In doing so, men perhaps more than women, have a duty and role to play in averting and combating violence against women, the judge added..These strong observations were made while dismissing a bail application filed by a woman, booked along with her husband and son under charges of rape, outraging modesty, cruelty and criminal intimidation. The Rajkot Cyber Crime Police had also invoked relevant charges under the Information and Technology Act.As per the prosecution case, the woman's daughter-in-law had lodged a complaint against her husband and parents-in-law accusing them of recording her nude videos and photos and uploading the same on a porn website. The complainant alleged that her father-in-law instigated her husband to record their intimate scenes on phone and upload the same on a porn website to earn money. She objected to the same and even complained about it to the father-in-law and the applicant mother-in-law. However, they had connived with her husband and forced her to get recorded on camera, she alleged.She stated that her husband was doing "unnatural" things to her on his parents' instigation. The complainant further said that the motive behind these acts was to earn money and avoid getting their hotel sold as they were reeling under financial crisis. .Having considered the facts and the material on record, Justice Joshi found that the applicant mother-in-law was aware about the sexual assault and harassment meted out to the complainant.Whatever might be the reason behind doing such a heinous and shameful act, the same must be strictly criticised and the accused must be punished in order to prevent commission of such type of offences in future, the judge said."The applicant, being a lady had not done anything to save the integrity of another lady when she told her about each and everything happened with her. She had to prevent her husband and son from doing such an act and by not doing so, she has played an equal role," the Court said while denying bail. .Advocate Urvashi Mehta appeared for the Applicant. Additional Public Prosecutor Manan Mehta represented the State..[Read Order]