Karnataka HC verdict on marital rape draws mixed reaction from petitioners fighting case in Delhi HC

PTI, Mar 24, 2022, 7:57 PM IST

New Delhi: The significant verdict by the Karnataka High Court that a man cannot escape trial for rape only because the victim is his wife on Thursday drew mixed reactions from the parties who have argued on the issue of marital rape before the Delhi High Court.

While counsel for one of the petitioners here, who has sought striking down of the exception granted to husbands under the Indian rape law, welcomed the Karnataka High Court verdict, a men’s rights activist said the judgement sets an extremely dangerous precedent.

However, other lawyers representing several petitioners refused to comment saying the matter is sub-judice in the Delhi High Court.

Section 375 of the Indian Penal Code (IPC), which defines the offence of rape, has the Exception-2 clause that says the non-consensual intercourse or sexual act by a man with his wife, not below 15 years, is not a rape.

This exception has been under challenge in various petitions filed in the Delhi High Court, which reserved its judgement in the matter in February, and in the Karnataka High Court.

Advocate Raghav Awasthi, who is representing NGOs RIT Foundation and All India Democratic Women’s Association before the Delhi High Court, said though he has not gone through the entire judgement of the Karnataka High Court, it is a “welcome step”.

“With this, we really hope that more awareness will come in the country in future,” he said.

However, Amit Lakhani, who is representing Men’s Welfare Trust which is an intervenor in the petitions, said there is a strong and evident push in the recent times to remove the exception from Section 375 of IPC so that the same rape law which was designed keeping in mind the offence where the perpetrator is not the husband, to be now applied on husband.

“This recent judgement will only add to this push without application of judicial minds to bring in another draconian law which would not just be unconstitutional in many ways but would serve as a handle for misuse and enable wife to cash in from failed marriages where as husband once accused would go behind bars, lose his job, child, money, self-esteem and would carry a tag of rapist even if case is proved to be false after years of trial and acquittal,” he said.

He added, “The judgement sets an extremely dangerous precedent where the judiciary steps into the shoes of the legislature by interpreting or rather misinterpreting the act and crossing the judicial boundaries.” The Karnataka High Court, in its March 23 verdict, has held that a man cannot escape trial for rape only because the victim is his wife as it is against the right to equality and suggested that lawmakers should heed the ”voices of silence” and remove the inequalities in statute.

The age-old regressive thought that the husbands are the rulers of their wives, their body, mind and soul should be effaced, it said while refusing to drop the charge of rape against the petitioner who had allegedly sexually assaulted his wife.

”Woman and man being equal under the Constitution cannot be made unequal by Exception-2 to Section 375 of the IPC,” it further said, noting that it is for the lawmakers to ponder over the existence of such inequalities in law.

Before the Delhi High Court, while the central government had not placed its clear stand on the issue of criminalisation of marital rape, it had said that a stand could only be taken by the Centre after consultations with state governments and other stakeholders.

It had said that since this case could have an impact on social and family life with far reaching consequences, the Centre can place its stand only after a consultative process.

In its 2017 affidavit, the Centre had opposed the pleas submitting that marital rape cannot be made a criminal offence as it could become a phenomenon that may destabilise the institution of marriage and an easy tool for harassing husbands.

However, the Centre told the court in January that it was ”re-looking” at its earlier stand on the petitions as that was brought on record in the affidavit filed several years ago.

The petitioners have challenged the constitutionality of the marital rape exception under Section 375 IPC (rape) on the ground that it discriminated against married women who are sexually assaulted by their husbands.