In a landmark observation by the Gujarat High Court, Justice Divyesh A. Joshi addressed the critical issue of marital rape and the broader context of gender violence in India. The court’s comments came during the hearing of a case involving a woman accused of aiding and abetting heinous sexual acts against her daughter-in-law.
‘Rape Is Rape Even If Committed By A Husband Against Wife’
Gujarat High Court, Says Need To Break Silence Over Gender Violence.
Justice Joshi critically examined the legal stance on marital rape in India, contrasting it with global norms. He pointed out the legal anomaly in Section 375 of the IPC (Exception 2), which exempts husbands from punishment for non-consensual sexual acts with their wives, provided they are 18 or above. This stands in stark contrast to many countries, including the 50 American states and 3 Australian states, where marital rape is explicitly illegal. The UK, a significant influence on the Indian Penal Code, abolished this exception following the House of Lords’ judgment in R v. R in 1991.
The case before the court involved disturbing allegations against the accused (mother-in-law) and her family. The police chargesheet detailed that the accused, along with her husband (father-in-law), coerced their son into taking and sharing explicit images of the complainant. The father-in-law was also accused of sexual assault and installing a CCTV camera in the complainant’s bedroom to observe intimate moments. The mother-in-law was aware of her son uploading these videos to a pornographic website. The complainant alleged that these acts were driven by financial desperation.
In its profound observation, the High Court delved into the underlying causes of violence against women. The court stated,
“The causes and factors of violence against women include entrenched unequal power equations between men and women that foster violence and its acceptability, aggravated by cultural and social norms, economic dependence, poverty and alcohol consumption, etc. In India, the culprits are often known to the woman; the social and economic ‘costs’ of reporting such crimes are high. General economic dependence on family and fear of social ostracization act as significant disincentives for women to report any kind of sexual violence, abuse or abhorrent behaviour. Therefore, the actual incidence of violence against women in India is probably much higher than the data suggests, and women may continue to face hostility and have to remain in environments where they are subject to violence.”
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The court emphasized the importance of fundamental rights under Articles 14, 15, 19, and 21, applicable to both men and women, including the right to live with dignity and personal liberty. It highlighted the need to break the silence around gender violence, noting that men have a more significant role in preventing and combating violence against women.
The court also criticized the societal attitudes that trivialize and normalize sexual violence, pointing out the lasting and harmful impact on survivors. Concluding its observations, the court noted that the offenses under Sections 498A, 376, 354, and 506 of the IPC were clearly outlined against the accused in the investigation and charge sheet. The court decided against granting bail, stating that any defense should be presented during the trial.
This ruling by the Gujarat High Court is a call to action, urging a reevaluation of legal provisions related to marital rape and addressing the pervasive issue of gender violence in India.
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