A far reaching verdict that ends a regressive exception

News: In the case of Hrishikesh Sahoo v. State of Karnataka, the Karnataka High Court pronounced the end of marital rape exception in Section 375 (Rape) of Indian Penal Code.

In the case, a husband approached the High Court seeking to quash the criminal proceedings against him. The charges framed were under Section 376 (rape), notwithstanding the marital rape exception. The High Court refused to quash the charge of rape against the husband.

What does the judgment say?

The Judge held that if a husband is exempted from his acts of sexual assault it would destroy the women’s right to equality, which is the soul of the Constitution.

The exception to marital rape in the IPC amounts to discrimination because a wife is treated as subordinate to the husband.

The Constitution guarantees women fundamental rights under Articles 14,15,19 and 21. These include the right to live with dignity, personal liberty, bodily integrity, sexual autonomy, right to reproductive choices, right to privacy, right to freedom of speech and expression.

What are the previous judgements?

In Independent Thought v. Union of India (2017), the Supreme Court of India diluted the exemption. Earlier the exception stated that sexual intercourse with wife over the age of 15 years is not rape. The Court changed the minimum age to 18 years. The Court stated that a girl cannot be treated as a commodity. The human rights of a girl child are alive whether she is married or not.

What are the basis of the judgement?

The exception to marital rape is based on the principle of common law that by marriage a woman gives up her body to the husband. Due to which, husband could not be guilty of raping his wife. This was also adopted in the Indian Penal Code.

In United Kingdom, the case of R v. R (1991), abolished the principle. The House of Lords held that the duty of the court is to take steps to alter the rule according to the position of society. Hence, a rapist remains a rapist subject to the criminal law, irrespective of his relationship with his victim.

Source: The post is created based on the article “A far reaching verdict that ends a regressive exception” published in The Hindu on 04th April 2022.