Criminalising Marital Rape: When is an Exception not an Exception? Indira Jaising 26 Mar 2022 https://www.newsclick.in/criminalising-marital-rape-when-exception-not-exception
In an act of judicial statesmanship, the Karnataka High Court interprets the exemption not to apply to brutality in sex. Implied consent is not inconsistent with absence of consent to being sexually abused. Nor is there any law which prevents a woman from withdrawing the implied consent in a given set of circumstances. Viewed from this angle, the recent decision of the Karnataka High Court can be said to be a revolutionary interpretation of the Exception and creates an exception to the exception, giving relief to women trapped in abusive marriages when the main form of abuse is sexual abuse. A wife, after all, is in a captive situation sharing a roof with her abuser.
Some indication of this interpretation can be found in Section 376B of the IPC:
376B. Sexual intercourse by husband upon his wife during separation. — Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine.
the judge concluded thus:
“29. The submission of the learned senior counsel that the husband is protected by the institution of marriage for any of his acts being performed, as is performed by a common man, again sans countenance, for the reason that 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. [emphasis added]
“Though the four corners of marriage would not mean society, it is for the legislature to delve upon the issue and consider tinkering of the exemption. This Court is not pronouncing upon whether marital rape should be recognized as an offence or the exception be taken away by the legislature. It is for the legislature, on an analysis of manifold circumstances and ramifications to consider the aforesaid issue.”
The ruling can be interpreted to mean that the so-called deemed consent to sex in marriage, which is the basis of the exemption, is withdrawn when sex degenerates into brutality.
It is on the facts of the case alone that the court concludes:
“This Court is concerned only with the charge of rape being framed upon the husband alleging rape on his wife.”
In an act of judicial statesmanship, the court interprets the exemption not to apply to brutality in sex. The ruling can be interpreted to mean that the so-called deemed consent to sex in marriage, which is the basis of the exemption, is withdrawn when sex degenerates into brutality.