The Karnataka High Court has said exempting a husband from allegation of rape and unnatural sex with his wife runs against the Article 14 of the Constitution, which speaks about equality.
“If a man, a husband, a man he is, can be exempted of allegation of commission of ingredients of Section 375 of the IPC, inequality percolates into such provision of law. Therefore, it would run counter to what is enshrined in Article 14 of the Constitution,” Justice M Nagaprasanna said in his order while dismissing a petition filed by a man seeking to quash the proceedings of allegedly committing rape and unnatural sex with his wife and sexually harassing his daughter.
Noting that the exception of sexual intercourse and other sexual acts by the husband stood exempted, the court said a woman being a woman is given certain status while a woman being a wife is given a different status. Likewise, a man being a man is punished for his acts whereas a man being a husband is exempted for his acts.
“It is this inequality that destroys the soul of the Constitution which is Right to Equality,” Justice Nagaprasanna noted.
The court also said all human beings under the Constitution are to be treated equal, be it a man, be it a woman and others and any thought of inequality, in any provision of law, would fail the test of Article 14 of the Constitution.
“Woman and man being equal under the Constitution cannot be made unequal by Exception-2 to Section 375 of the IPC. It is for the law makers to ponder over existence of such inequalities in law,” the Judge further observed.
The order underlined that for ages man donning the robes of a husband has used the wife as his chattel; but his crude behavior notwithstanding his existence because of a woman.
The order further said that the age old thought and tradition that the husbands are the rulers of their wives, their body, mind and soul should be effaced.
“It is only on this archaic, regressive and preconceived notion, the cases of this kind are mushrooming in the nation,” the judge noted.
According to the judge, sexual assault by a husband on his wife will have grave consequences on the mental sheet of the woman and 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 bench observed.
The judge observed that in the Victorian era women were denied the exercise of basic rights and liberties and had little autonomy over their choice and, also, their statuses were nothing beyond than that of materialistic choices and were treated as chattels.
“Post Republic, India is governed by the Constitution. The Constitution treats woman equal to man and considers marriage as an association of equals. The Constitution does not in any sense depict the woman to be subordinate to a man,” the judge observed.
The bench described “wanton lust, vicious appetite, depravity of senses, loathsome beast of passion, unbridled unleashing of carnal desire of demonish perversion” pervaded the entire petition.
“It is these that drove the complainant-wife to register a complaint against the husband for offences punishable, inter alia, under Sections 376 and 377 of the Indian Penal Code. Cognizance being taken against the husband for the rape of his wife, is what drives the accused-husband, to this Court,” Justice Nagaprasanna observed.
The petitioner’s wife who had lodged complaints of rape and unnatural sex against her husband and also sexually harassing his own daughter had stated that she had become a sex slave to her husband right from the day of the marriage.
His ‘lust’ during her pregnancy had allegedly led to miscarriage. He also forced her to have sex before his daughter, the woman alleged.
“There was countless sexual harassment which no female in the world would like to express,” the woman had said in her complaint.
The court also pointed out that the charge sheet filed by the police after investigation also depicted graphic details of the ‘demonish lust’ of the accused husband, “all for satisfaction of the gory carnal lust”.
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