Rape Is Rape Even When It Is Committed By Husband: Gujarat HC

The Gujarat High Court has observed that ‘rape is rape’, even when it is committed by a man on his wife, citing that the “silence shrouding sexual violence against women in India needs to be broken”.

Justice Divyesh Joshi, in an order passed recently, observed that the actual incidences of violence against women in India are probably much higher than the data suggests and that women may continue to face hostility and remain in environments where they are subject to violence.

The order stated that social attitude typically characterises certain behaviours — such as stalking, teasing, shades of verbal and physical assault, and harassment — as “minor” offences, which are “regrettably” not only trivialised or normalised but even romanticised and promoted in popular lore such as cinema.

It said further that the attitudes which view sexual crimes through the prism of “boys will be boys” and condone them, nevertheless, “have a lasting and pernicious effect on the survivors”.

These observations from the court came while rejecting the regular bail plea of a woman who was arrested for subjecting her daughter-in-law to cruelty and criminal intimidation while her husband and son raped and filmed her in the nude to post videos on pornography sites for money.

The court said, “In most cases of (assault or rape on a woman), 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 order further stated, “The Constitution treats a woman as equal to a man and considers marriage as an association of equals.”

It said, gender violence is “most often unseen and is shrouded in a culture of silence”, and the causes and factors of violence against women include entrenched unequal power equations between men and women, “aggravated by cultural and social norms, economic dependence, poverty and alcohol consumption, etc.”

It observed, “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 ostracisation act as significant disincentives for women to report any kind of sexual violence, abuse or abhorrent behaviour.”

Therefore, it said, 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.

The court said, “This silence needs to be broken. In doing so, men, perhaps more than women, have a duty and role to play in averting and combating violence against women.”

It said the United Kingdom has abolished the exception given to husbands and that marital rape is illegal in 5 American states, three Australian states, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland, Czechoslovakia and several other countries.

According to the details of the case, the victim’s husband, mother-in-law and father-in-law were arrested after an FIR was registered at the Rajkot cyber crime police station under sections 354(A) (unwelcome and explicit sexual behaviour, demand for sexual favours, showing pornography against a woman’s will), 376 (rape), 376(D) (gang rape), 498 (husband or relative of husband subjecting woman to cruelty), 506 (criminal intimidation), 508 (inducing a person to believe that not doing a particular act will cause punishment by God), and 509 (sexual harassment) of the IPC.

The prosecution said that the defendant’s son shot nude videos of his wife and their intimate moments on his mobile phone and then forwarded them to his father. As the acts were done in her presence, the defendant was aware of this. The father-in-law of the victim also molested her when she was alone, alleged the prosecution.

The defendant was aware of the “illegal and shameful act”, noted the court and by not preventing her husband and son from performing it, she had played an equal role.