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

Gujarat High Court Decisively Rules Against Marital Rape Exception

| Updated: 19 December, 2023 6:25 pm IST

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NEW DELHI: The Gujarat High Court, in a landmark judgment on December 8, emphasised the gravity of rape as an offense, asserting that even if committed by the victim’s spouse, it remains a heinous act. Justice Divyesh Joshi, while rejecting the bail plea of a woman accused of abetting her son’s alleged sexual assault against his wife, stated unequivocally, “A man is a man; an act is an act; rape is rape, be it performed by a man, the ‘husband’ on the woman ‘wife’.”

This pronouncement comes against the backdrop of the ongoing Supreme Court deliberations on petitions challenging the exception to Section 375 of the Indian Penal Code (IPC), which excludes forceful sexual intercourse by a husband from the scope of rape laws. The court is reviewing a set of public interest litigations (PIL) that argue against the immunity clause for married women, and a split verdict by the Delhi High Court in May 2022 awaits final adjudication.

One of the cases before the Supreme Court involves an appeal by a man whose trial for allegedly raping his wife gained approval from the Karnataka High Court in March 2022. Notably, the BJP-ruled Karnataka government filed an affidavit in November 2022, supporting the criminal prosecution of the husband.

Justice Joshi’s order highlighted the global context, pointing out that marital rape is illegal in numerous countries, including the US, Australia, Canada, Israel, France, Sweden, Denmark, Norway, Poland, and the UK. The judge emphasised that the UK, which significantly influenced India’s legal code, eliminated the exception for husbands in 1991.

In a separate case from August 2023, a woman in Rajkot accused her husband, father-in-law, and mother-in-law of sexual assault. The Gujarat police arrested all three, and charges were filed under various sections of the Indian Penal Code, including cruelty, rape, molestation, and criminal intimidation.

The high court acknowledged the diverse nature of sexual violence and condemned the trivialisation and romanticisation of such crimes in popular culture. The 13-page order underscored the lasting and pernicious impact of societal attitudes that condone and normalise sexual violence, urging a comprehensive reevaluation of these perspectives.