Imperative for the law makers to now "hear the voices of silence", said the High Court(Representational)
Marriage is no license to "unleash a brutal beast", the Karnataka High Court said on Wednesday, in a landmark order that allowed framing of rape charges against a husband accused of forcing his wife to be a "sex slave".
"The 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 High Court order said.
"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. It is, therefore, imperative for the law makers to now "hear the voices of silence," the order stated.
The High Court said the "age-old thought and tradition that husbands are the rulers of their wives, their body, mind and soul should be effaced". It was only on that "archaic, regressive and preconceived notion" that such cases are mushrooming in the nation, said the order.
Marital rape is not a criminal offence in India despite years of campaign.
The Karnataka High Court said it was not talking about whether marital rape should be recognized as an offence. It was for the legislature to consider it. "This court is concerned only with the charge of rape being framed upon the husband alleging rape on his wife."
The case involves a woman who told the court that her husband had treated her like a sex slave right from the start of their marriage. Describing her husband as "inhuman", she alleged that she had been forced to have unnatural sex, even in front of her daughter, by him.
The High Court said in any man, on account of being a husband, was exempt from rape charges, it meant inequality in law, and a violation of the constitution.
"Woman and man being equal under the constitution cannot be made unequal by any exception to Section 375 (rape) of the IPC (Indian Penal Code). It is for the law makers to ponder over existence of such inequalities in law," the High Court said.
"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," the order said, adding that this was why many countries had recognised marital rape or spousal rape.
Marital rape, the court pointed out, is illegal in 50 American states, 3 Australian states, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia and several other countries.
In February, the Delhi High Court had berated the Centre for dilly-dallying on criminalisation of marital rape and had said: "You have to bite the bullet. If you say the court should adjourn the matter endlessly, it won't happen."
The Centre has said in court hearings that the subject involves "intimate family relations" and it needs to consider the social impact before filing a response. It has also said it needs to be "fully familiarised" with "prevailing ground realities" in different parts of society.