‘Rape is rape even if committed by a husband against wife’: Gujarat HC


Amid a series of pleas arguing for the criminalisation of marital rape pending before the Supreme Court, the Gujarat High Court in its recent order observed that rape is rape even if it is committed by a husband against his wife. The court expressed its disagreement with the marital rape exception as provided under Section 375 of IPC (Exception 2). 

In its 8th December order, a single-judge bench of Justice Divyesh Joshi highlighted that marital rape is illegal in fifty American States, three Australian States, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland, Czechoslovakia, and several other nations, Bar and Bench reported on 18th December (Monday).

The court order stated that a man sexually assaulting or raping a woman is amenable to punishment under Section 376 of the IPC.

Justice Joshi noted, “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 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’.”

The court order noted that the United Kingdom, from which Indian criminal laws have been predominantly drawn, has abolished the exemptions previously allowed for ‘husbands’. 

The order stated, “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.” 

Further, the Court emphasised the need to address the social attitude of ‘boys will be boys’ noting that it trivialises or normalises offences of eve teasing and stalking. It asserted that sexual violence encompasses a spectrum of severity, ranging from the most egregious form, which is rape with or without accompanying violence, to a significant number of incidents falling under the category of sexual violence and constituting offences under various legal statutes.

Justice Joshi noted, “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.” 

The court further asserted that there is a need to break the ‘silence’ surrounding gender violence. The court added that in India, the culprits are often known to the women but the social and economic ‘costs’ of reporting such crimes are high, as reported by Bar and Bench.

Notably, the court made these observations while dismissing a bail application filed by a woman. She has been made accused along with her husband and son under charges of rape, outraging modesty, cruelty, and criminal intimidation. 

According to the prosecution, the woman’s daughter-in-law accused her husband and her parents of taking her nude videos/photos and uploading them on a porn website. 

According to the complainant, her father-in-law instigated her husband to capture intimate moments on a phone and upload them to a porn website for financial gain. She protested against this and reported the matter to both her father-in-law and the accused mother-in-law. 

Allegedly, they conspired with her husband, forcing her to be recorded on camera. She claimed that her husband engaged in “unnatural” acts under the influence of his parents. The complainant asserted that the motive behind these actions was financial, aiming to prevent the sale of their hotel due to an ongoing financial crisis.



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