In what could be a significant development on jurisprudence surrounding consent in marital relationships, the High Court declined to quash the charge of rape framed under Section 376 of the Indian Penal Code (IPC) against a man accused of raping and keeping his wife as a sex slave.

The Court said that the institution of marriage cannot be used to confer any special male privilege or a license for unleashing of a "brutal beast" on the wife.

"A brutal act of sexual assault on the wife, against her consent, albeit by the husband, cannot but be termed to be a rape. Such sexual assault by a husband on his wife will have grave consequences on the mental sheet of the wife, it has both psychological and physiological impact on her. Such acts of husbands scar the soul of the wives," the Court said.

For ages, man donning the robes of a husband has used the wife as his chattel but this age old thought and tradition that the husbands are the rulers of their wives, their body, mind and soul should be effaced, the Court emphasised.

"Institution of marriage does not confer, cannot confer and in my considered view, should not be construed to confer, any special male privilege or a license for unleashing of a brutal beast. If it is punishable to a man, it should be punishable to a man albeit, the man being a husband," the Court made it clear.

Thus, it held that a man sexually assaulting or raping a woman is amenable to punishment under Section 376 of IPC.

"The contention of the learned senior counsel that if the man is the husband, performing the very same acts as that of another man, he is exempted. In my considered view, such an argument cannot be countenanced," the Court underscored.

It, therefore, concluded that the charge framed against the husband by the Sessions Judge for the offence punishable under Section 376 of the IPC for alleged rape of his wife, in the peculiar facts of this case, does not warrant any interference and is a matter of trial.

"A brutal act of sexual assault on the wife, against her consent, albeit by the husband, cannot but be termed to be a rape."

In the present case, after a few years of living together, the relationship of the couple had become strained. After many instances of physical and mental torture to the wife and the child, the wife registered a complaint against the husband for offences punishable under Sections 506 (punishment for criminal intimidation) 498A (cruelty to wife) 323 (Punishment for voluntarily causing hurt) 377 (Unnatural offences) of the Indian Penal Code (IPC) and Section 10 (aggravated sexual assault) of the Protection of Children from Sexual Offences Act, 2012 (POCSO).

The Special Court framed charges against the petitioner-husband for offences punishable under Sections 376 (rape), 498A and 506 of IPC and Section 5(m) and (l) read with Section 6 of the POCSO Act.

"Institution of marriage does not confer license for unleashing of a brutal beast."

The Court framed the issue for examination as follows:

Whether cognizance being taken against the petitioner-husband for offence punishable under Section 376 of IPC is tenable in law?

The Court noted that what drove the wife to register the complaint and was the allegation of brutal sexual acts by the husband against her, as also, sexual abuses against the child. As such, the court referred to the complaint and its narration.

The complaint by the wife stated she was victimized to become a sex slave to the husband. It said:

"I have become a sex slave to my husband right from the day of my marriage. I was compelled and forced to have unnatural anal sex, oral sex by imitating the sex films. My husband did not leave me from giving him forcible sex even after pregnancy and had no courtesy to continue with sex even after my baby got terminated.

My husband is totally an inhuman and he forced me to perform all unnatural sex in front of my daughter and many occasions he had beaten her and had forcible sex with me. There was countless sexual harassment which no female in the world would like to express and I want my name and my daughter’s name in the complaint to be undisclosed and punish my husband. I am terrible in untold pains from knowing that my husband had sexually harassed my daughter by bringing her early from school and also I do not want any daughter or any mother to undergo the sufferings which both me and my daughter have suffered."

The Court noted that the charge sheet filed by the police after investigation also depicted graphic details of the demonish lust of the husband, that he has had unnatural sex and sexual intercourse upon torturing or abusing the wife, or threatening to beat the daughter.

Further, during the pendency of the proceedings before the Sessions Court, the wife had sought help from different quarters and clearly indicated as to how brutal the petitioner used to have sex and anal sex with the wife in the presence of his daughter who was 9 years old at that point. He later used to touch the private parts of the daughter and also indulged in sexual acts against the daughter.

"The communications that are made or voluntary letters written by both the wife and daughter are so chilling and abhorrent that they cannot be reproduced in the order," the Judge observed.

The Court noted that the genesis of Section 375 of the IPC and its exception has its roots in the Code propounded by Macaulay in 1837, which became the basis of the Indian Penal Code of 1860. The exception to Section 375 for the husband has existed in the IPC since the time of its enactment by the British in the year 1860.

"They were several decades ago. It was founded and remained on the premise of a contract in the medieval law that husbands wielded their power over their wives. In the Victorian era, women were denied the exercise of basic rights and liberties and had little autonomy over their choice. Their statutes were nothing beyond than that of materialistic choices and were treated as chattels," the Court observed.

However, after India became a republic, we are governed by Constitutionm the Court said.

"Post Republic, India is governed by the Constitution. The Constitution treats woman equal to man and considers marriage as an association of equals. The Constitution does not in any sense depict the woman to be subordinate to a man. The Constitution guarantees fundamental rights under Articles 14, 15, 19 and 21 which are 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. Under the Constitution, the rights are equal; protection is also equal," the judge emphasised.

When the JS Verma Committee had suggested amendments dealing with sexual offences in the Code, it was recommended that the exception for marital rape be removed, the court noted.

When the IPC was amended, the exception to Section 375 reads as follows:

“Exception 2 - Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

While considering the exception for husbands in Section 375, the court said: "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"

Noting that there are many laws to protect women and girl children, the court said that the soul of these enactments are protection of women and equal status to women.

Terming the exception for husbands under Section 375 as regressive, the court said that under the Code every other man indulging in offences against woman is punished for those offences.

"But, when it comes to Section 375 of IPC the exception springs. In my considered view, the expression is not progressive but regressive, wherein a woman is treated as a subordinate to the husband, which concept abhors equality. It is for this reason that several countries have made such acts of the husband penal by terming it marital rape or spousal rape," the Court said.

Further, marital rape is illegal in in many other countries, the Court noted, and in the United Kingdom, which the present Indian Penal Code largely draws from, the exception for marital rape was removed in the year 1991.

"Therefore, the Code that was made by the rulers then, has itself abolished the exception given to husbands," the single-judge said.

The Court did not accept the contention of the petitioner that if the man is the husband, performing the very same acts as that of another man, he is exempted:

"In my considered view, such an argument cannot be countenanced. 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”."

The husband cannot be protected by the institution of marriage, the court observed:

"Every ingredient of rape is met with in the alleged complaint. If it were to be a common man, the allegation on the face of it be punishable under Section 376 of IPC, why not the husband-petitioner. It is for the petitioner to come out clean in the trial, if he is so much in the defensive of his acts. Interjecting the trial in the teeth of the aforesaid complaint and the charge being framed would become a travesty of justice," the court noted.

While upholding the charge of rape against the husband, the court noted that it is not pronouncing on whether marital rape should be recognized as an offence or the exception be taken away by the legislature, and that the Court is concerned only with the charge of rape being framed upon the husband in the present case.

It is for the legislature, on an analysis of manifold circumstances and ramifications to consider the issue of marital rape, the Court made it clear.