Hrishikesh Sahoo and State of Karnataka & Ors.
In this case, a husband was under allegations that he solicited unnatural sexual intercourse from his wife and even tried to molest his daughter. He was working at Bangalore and have a child. After few years of living together, relationship of the couple gets horribly strained. Due to continuance physical and mental torture, the wife decided to file a complaint against her husband.
The offence was punishable under sections 506, 498A, 323, 377 of Indian penal court(IPC) and section 10 of the protection of children from sexual offences act, 2012(POSCO ACT). The court has rejected a petition filed by a husband seeking to drop charges of rape under section 376 of the IPC., levelled against him by his wife. The court thus did not accept the husband’s argument that the charges cannot be framed against him due to the exceptions to marital rape from the offence of rape as per exception 2 to section 375 of the Indian penal code.
In short:
➢ Charges framed against the husband for alleged offence punishable under section 376 of IPC for alleged rape of his wife, in the peculiar facts of this case, does not warrant any interference. It is a matter of trial.
➢ Other offences alleged against the petitioner, the ones punishable under sections 498A, 354, 506 of the IPC are clearly brought out in the complaint and in the charge sheet. This is again a matter of trial.
➢ The prosecution, notwithstanding presumption against the accused under section 29 and 30 of the POSCO act, has to prove foundational facts beyond all reasonable doubt.
➢ The charge framed by the sessions court is to be altered by inclusion of offence punishable under section 377 of the IPC owing to peculiar facts of this case.
➢ The designated court hearing cases relating to offences under the POSCO act can try the offences under the IPC as well, in the facts of the case.
➢ Allegations against the petitioner-husband for offences punishable under the POSCO act for alleged sexual acts on the daughter cannot be interfered with. It is yet again a matter of trail.
Recommendations made by court:
1) The exception for marital rape be removed.
2) The law ought to specify that:
3) A marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation;
4) The relationship between the accused and the complainant is not relevant to the injury into whether the complainant consented to the sexual activity.
5) The fact that the accused and victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape.
The Karnataka govt has supported the prosecution of a husband in a case for marital rape. Justice Nagaprasanna held that the exception of the husband on committing rape cannot be absolute, as no
exemption in law can be so absolute that it becomes a licence for the commission of a crime against society. He found the statutory immunity against marital rape not progressive but regressive, wherein a woman is treated as a subordinate to the husband, a concept that abhors equality.
“A man who is well acquainted with a woman performs all the ingredients as is found in pre or post amendment to section 375 of the IPC, can be proceeded against the offences punishable under
section 376 of IPC. Therefore, a man sexually assaulting or raping a woman is amenable to punishable 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. 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,” Justice Nagaprasanna opined.
The state government filed the affidavit in response to a notice by the supreme court on an appeal filed by the man against a judgment of the Karnataka high court.
On May 11, Justice C Hari Shankar and Rajiv Shakdher of the high court passed a split verdict on the matter. Justice Shankar rejected the plea to criminalize marital rape, “Consent is not the sole deciding
factor…circumstances/context determine the nature of consent or its absence,” said justice Shankar.
The judge gather noted that by removing the exception, courts will be creating an offence, “therefore, state’s intervention through the legislative route is required to balance individual dignity and prevent
the possibility of abuse of legal remedies with may end up harming an individual’s dignity/reputation,” according to Justice Shankar.
In 2017, the government had said that criminalising marital rape would destabilise the institution of marriage. It had also said the criminating would become an “easy tool” for harassing husbands.
CASE TITLE: HRISHIKESH SAHOO AND STATE OF KARNATAKA & ORS.
By: AYUSHI BHUSHAN, 1ST YEAR, BA.LLB(INTERGRATED), BANASTHALI UNIVERSITY, RAJASTHAN.
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