Rape is rape; marital rape will come under Section 376: Gujarat HC

GANDHINAGAR: In a strongly worded judgement, the Gujarat High Court has observed that a husband committing acts of rape against his wife would come under the purview of Section 376 of the Indian Penal Code (rape). The Court’s observation comes while a batch of petitions regarding the criminalisation of marital rape lie pending before the Supreme Court.

“Therefore, a man sexually assaulting or raping a woman is amenable to punishment under Section 376 of IPC. In most of the cases of such a nature, the usual practice is that if the man is the husband, performing the very same acts as that of another man, he is exempted. In my considered view, the same 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 Court stated.

Justice Divyesh Joshi, in the judgement, noted that marital rape is illegal in 50 American States, 3 Australian States, New Zealand, Canada, Israel, France, Sweden among other countries. 

What was the case before the High Court?

The prosecution case was that the woman's daughter-in-law had lodged a complaint against her husband and parents-in-law accusing them of recording her nude videos and photos and uploading it on a porn website. The complainant stated that the mother-in-law also sided with her son and husband and told the complainant to as per the father-in-law’s wishes. It was also alleged that when the complainant was alone at home, the father-in-law was molesting her. Another allegation was that the husband committed “unnatural acts” against her will. 

After lodging an FIR, the accused persons were arrested and investigation was carried out. In the plea before the High Court, the mother-in-law was seeking bail. It was contended that in the first information report, present applicant-accused had aided, instigated and abetted the accused No.2, i.e, the husband of the complainant to commit such an offence and, therefore, she has been arraigned as an accused. The only role attributed to her is of abettor.

The Additional Public Prosecutor (APP) for the state opposed the grant of regular bail considering the nature and gravity of the offence. The role of the present applicant-accused is clearly spelt out from the compilation of the charge-sheet papers, he added.
 
Applicant did nothing to save integrity of another woman: HC

According to the Court, the entire issue springs from the complaint registered by the wife alleging commission of brutal sexual acts by the husband, father-in-law and mother-in-law against her. After registration of the complaint and investigation, the Police filed their final report/charge sheet.

It, the Court noted, revealed “demonish lust of the husband of the complainant and her father-in-law” whether for money or for sexual satisfaction in which the applicant accused has also very actively participated. 

“Herein the case on hand, the allegations are very serious in nature. The husband himself has recorded their lovemaking moments in the camera of his mobile which were subsequently shared in one WahtsApp group of the family and also uploaded on one porn website, namely, charubate-free adult. It is not that the husband is doing such an illegal activity with any woman with whom he has an illicit relationship. The victim in the present case is his own wife whose videos were being uploaded on the porn website by her husband itself. The applicant-accused is the mother-in-law of the complainant who was also very well aware about the said fact”. 

And so, it can’t be said that the applicant-accused was unaware about the sexual assault and harassment meted out to the complainant, the Court observed. Irrespective of the reason behind doing such heinous and shameful acts, it must be strictly criticized and the accused must be punished in order to prevent commission of such offences, the Court stated. 

Additionally, the Court pointed out that the applicant being a lady, did nothing to save the integrity of another woman. 

“The applicant-accused being a lady had not done anything to save the integrity of another lady when the complainant told her about each and everything happened with her. She had to prevent her husband and son from doing such an act and by not doing so, she has played an equal role that of the other two accused, i.e, the husband of the complainant and the father-in-law.” Owing to these reasons, the Court denied bail to the applicant.