In a latest judgment of High Court of Karnataka, a single-judge bench has upheld the order of lower court refusing to drop charge of Section 376 of IPC (rape) against husband — meaning holding the lower court right in taking cognizance of offence of rape and framing of charge for the same against the husband in a complaint filed by the wife against the husband for offences of Section 498A, 376, 354, 506 of the IPC (committed against wife) and Section 5(m) and (l) of the Protection of Children from Sexual Offenses (against daughter).
The question before the HC was: Whether cognizance taken and rejection of the prayer for dropping the charge under Section 376 of IPC suffers from want of legal tenability?
What the HC held
The HC has upheld the lower court order of taking cognizance of offence of rape against the husband and framing of charge for the same. In its 90 pages judgment, obiter dicta (passing observation, which can be of persuasive value only) has usurped the place of ratio decidendi (principle of law, which is binding in law) and morality has usurped the place of law.
The HC has taken the cudgels of Justice JS Verma Committee recommendations which sought removal of Exception 2 from Section 375 which defines rape. For ready reference of the readers the provision is:
Exception 2: Sexual intercourse or sexual acts by a man with his wife, the wife not being under fifteen years of age, is not rape.
It goes on to reason, “Therefore, a woman being a woman is given certain status; a woman being a wife is given a different status. Likewise, a man being a man is punished for his acts; a man being a husband is exempted for his acts. It is this inequality that destroys the soul of the Constitution which is Right to Equality.” The court has taken into considerations legal provisions across the entire spectrum of law starting from Constitutional provisions of Article 14, 15, 19, 21 etc to Domestic Violence Act, Hindu Succession Act et al. It said that “A man is a man; an act is an act; rape is a rape, be it performed by a man the “husband” on the woman “wife”.
Why the judgment is an act of perfect judicial perversion
The court noted that “This Court is not pronouncing upon whether marital rape should be recognised as an offence or the exception be taken away by the legislature. It is for the legislature, on an analysis of manifold circumstances and ramifications to consider the aforesaid issue. This Court is concerned only with the charge of rape being framed upon the husband alleging rape on his wife.”
The above note of caution by the court makes it apparent that it was wary of the judicial misadventure it was playing with as whether Exception 2 needs to be removed or not is a function of legislature and the courts are barred to trespass this area by virtue of Article 50 of the Constitution which is separation of power.
Now the legal question which arises in this judgment is: Whether the court is right in taking cognizance of an act which is not an offence?
In this context it would be relevant to have a look at the definition of offence and the related provision of cognizance:
Section 40 of IPC: “Offence” — Except in the 39 [Chapters] and sections mentioned in clauses 2 and 3 of this section, the word “offence” denotes a thing made punishable by this Code.
In Chapter IV, 40 [Chapter VA] and in the following sections, namely, sections 41 [64, 65, 66, 42 , 71], 109, 110, 112, 114, 115, 116, 117, 43 [118, 119, 120,] 187, 194, 195, 203, 211, 213, 214, 221, 222, 223, 224, 225, 327, 328, 329, 330, 331, 347, 348, 388, 389 and 445, the word “offence” denotes a thing punishable under this Code, or under any special or local law as hereinafter defined.
And in sections 141, 176, 177, 201, 202, 212, 216 and 441, the word “offence” has the same meaning when the thing punishable under the special or local law is punishable under such law with imprisonment for a term of six months or upwards, whether with or without fine.
Section 193 of CrPC: Cognizance of offences by Courts of Session. Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.
A conjoint reading of these two sections makes it crystal clear that marital rape is not an offence and an act which is not an offence is out of purview of cognizance – cognizance can be of offence and not an act however immoral it may be. By saying this, we are not validating marital rape, we are only making a point that such judicial misadventure by the courts is not a healthy thing. This is a direct attack on powers of legislature and such transgression must not be encouraged.
Opinion on Marital Rape
As famously said in the movie Pink: NO means NO. Consent in sexual relation is of utmost importance; but in the zeal of activism, courts must not forget that there’s no wedlock between morality and law. Consent in marriage is a question of moral propriety and every immorality is not an offence. It is agreed that aggravated sex in marriage is a different issue altogether.
Moral standards are synchronous with modernisation in society. Morality is also contextual. It can be expected from a literate man to understand the propriety of consent in marital sex, but can we expect the same from an illiterate man who works on wages, comes home drunk and have forced sex with his wife? It is observed by the Apex court in various judgments like Dastane Vs Dastane that cruelty is subjective; what is cruelty to A, may not be cruelty to B. Likewise, it would be catastrophic if non-consensual sex in marriage per se would be criminalised at this juncture of our civilisation.
As far as aggravated sexual intercourse or assault is concerned, it shall be explicitly made a ground for divorce as held by a bench of Justice A Muhamed Mustaque and Kauser Edappagath in a judgment dated 30.07.2021, title kept anonymous for the sake of privacy. Even though, sexual cruelty is not an explicit ground of divorce under Section section 13(1) (ia) of Hindu Marriage Act, the Kerala HC stretched the expanse of ground of cruelty provided under section 13(1) (ia) by holding: “A husband’s licentious disposition disregarding the autonomy of the wife is a marital rape, albeit such conduct cannot be penalised, it falls in the frame of physical and mental cruelty.” It is already one of the grounds for divorce impliedly.
(This article has been co-authored with Lokesh Sinhal, Sr. additional Advocate General for the Govt of Haryana. Seema Sindhu is advocate at Supreme Court of India. She can be reached at twitter @SeemaSindhu)