Need to Criminalize Marital Rape and Recent Observations made by Gujarat High Court

In a significant development, the Gujarat High Court recently made important observations regarding marital rape and its legal implications. The court disagreed with the marital rape exception provided under Section 375 of the Indian Penal Code (IPC) and highlighted the fact that marital rape is illegal in 50 American states, 3 Australian states, and many other countries.

The court also noted that the United Kingdom, which served as a model for the Indian Penal Code, abolished the marital rape exception in 1991 through a judgment rendered by the House of Lords. This observation underscores the fact that even the framers of the Indian Penal Code recognized the need to remove the exception given to husbands.

The case before the Gujarat High Court involved a woman who was allegedly subjected to brutal sexual acts by her father-in-law, husband, and mother-in-law. The allegations were deeply disturbing, including the compulsion to take explicit videos and photographs and share them on a porn website. The court, in its order, noted that the mother-in-law’s failure to prevent or intervene in these acts made her equally culpable.

The court further emphasizes that crimes of sexual violence, ranging from rape to harassment and assault, should not be trivialized or romanticized. Such crimes have a lasting and pernicious effect on survivors, and it is crucial to challenge societal attitudes that enable and perpetuate these offenses.

The Court stressed that social attitudes typically characterize these crimes as ‘minor’ offences and by doing so, such crimes are not only trivialised or normalized, rather they are even romanticized and therefore, invigorated in popular lore such as cinerna. These attitudes which indulgently view the crime through prisms such as “boys will be boys” and condone them, nevertheless have a lasting and pernicious effect on the survivors, the Court added.

Against the backdrop of these observations, coming to the facts of the case, the Court noted that the offences punishable under Sections 498A, 376, 354 and 506 of the IPC are all clearly spelt out in the complaint against the accused-applicant in the statements recorded during the investigation and the contents of the summary in the charge sheet.

The Court further added that various disputed questions of fact have to be thrashed out only in a full- fledged trial and hence, if the applicant has anything in her defense on the allegations, it is for her to put up such defense before the Sessions Court and come out clean in the trial.

Given this, the Court did not deem it fit to grant her bail.

In related news, while acquitting a husband of the charges under Section 377 IPC for allegedly committing an “unnatural offence” against his wife, the Allahabad High Court recently observed that protection of a person from marital rape continues in cases where his wife is of 18 years of age or more than that.

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