Marital Rape is Not a Privilege of Husband: Gujarat HC reading Story of Wife (victim) Amaresh Patel LANDMARK JUDGMENT Mon, Jun 10, 2019, at ,11:06 PM Title of the Case – Marital Rape is Not a Privilege of Husband Name of the case – Nimeshbhai Bharatbhai Desai vs. State of Gujarat., R/Crl. Misc. A. No. 26957 of 2017 (Gujarat High Court) Date of Judgment – 02nd April, 2018 Judges: Justice Pardiwala Subject and sections involved – Section 354 and 376 IPC Issue: Whether FIR registered under section 376 against the accused (husband) is liable to be quashed? If yes, what would be appropriate remedy? Fact of the Case: 20th May, 2014, Nikita lodged a criminal complaint against her husband Nimesh Bharatbhai Desai. The first information report is extracted hereunder; “My name is Nikita, w/o Nimesh Bharatbhai Desai, aged about 28 years, occupation service, residing at Mahadev Vas, Kheralu, Tal. Kheralu, Dist. Mahesana. Presently residing at B-25-26, Dhaneshwar Society, Barwav Road, Idar, Dist. Sabarkantha. Mobile No. 9428312479. I dictate the fact of my complaint that I reside at the above address and since 20/3/2017, I am staying at Idar with my father Bharatbhai Prabhudas Desai. I work as Pediatrician in the Sanjivani Pediatric Private Hospital and I commute from Idar to Himmatnagar at the place of my service. My marriage was solemnized on 20/5/2014 with Nimesh Bharatbhai Desai at Mahadev Vas, Kheralu as per customs of our society. Since then, we were living together as husband and wife. After marriage, I stayed at Kheralu with my husband and mother-in-law and father- in-law for one month. Thereafter, as my husband was doing internship of M.D. at Vadodara, I stayed with my husband for two and a half years at 22, Vrajvihar Duplex, Near Vishwamitri Society, Near Gujarat Tact, Vishwamitri, Vadodara. I was also doing service at the Dadaji Pediatric Hospital, Baranpur, Vadodara and I was drawing monthly salary of Rs. 12,000/-. Thereafter, in August 2016, as my husband completed M.D., he got a service at Surat as a Medical Officer in Unn Corporation. We came to stay at Surat from Vadodara and we were staying at 602, Shalin Enclave, Near Raj Corner, SUDA Aawas Road, Pal, T.P. 10, L.P. Savani Circle, Adajan, Surat. I was doing service as a Medical Officer at the Neo Plus Neonatal ICU Hospital, Adajan at the salary of Rs. 16,000/- per month. I was staying with my husband and as my father-in-law is working as Veterinary Officer at Satlasana, he stays there and my mother-in-law Nayanaben stays with my Jeth (elder brother of husband) at Ahmedabad and commutes to Satlasana. I do not have any children. My husband loved me very much till about six months from my marriage and we consumed all the rights as husband and wife. Suddenly after six months of my marriage, I noticed that the behaviour of my husband had changed and he developed sexual perversion. But as we both were having good jobs and as we were husband and wife, I ignored his such behaviour of sexual perversion and as I used to support my husband in all the works as per his desire and as I did not oppose him, he had got a free hand. His actions changed as the days passed and his bad demands also increased. When I used to stay alone at my house at Adajan, Surat after my job, my husband used to force me to indulge in oral sex with him and if I would oppose, then he sometimes used to allure me with love and sometimes, he used to threaten me. But I used to bear all these as I was his wife. Thereafter, I realized that my husband became more perverted. On holidays, when we used to go out to gardens or public places, he used to force me to have sexual relations in public and he used to often compel me to do oral sex. Thereafter, his mental pervertness increased and at times, he used to have sexual intercourse with me forcibly against my consent without considering whether it was night or day. After some time, along with the oral sex, my husband used to take off my clothes and used to tell me to have unnatural sex with him. When I denied to do it, he started moving his fingers on my vagina and started oral sex. Because of his such act, I was mentally and physically broken down. When I told my husband not to do unnatural sex with me, he threatened me saying you are my lawful wife and being your husband I have right over all the parts of your body and you do not have any child till today and you will not have any child in future also. I have made you my wife just to fulfill my sexual desires. You can go wherever you want. I will get much better girls than you. He used to tell me this and if I do not give in to his demands, he used to beat me up. Though my father-in-law and mother-in-law were aware about this, they used to provoke my husband to give me this kind of physical and mental torture. However, I used to bear all this harassment so that me and my parents are not defamed in the society and therefore, I did not inform my parents regarding this. My husband forcefully made me to remove my clothes against my wish and committed oral sex and raped me at about half past nine in the night on 19/03/2017. He started oral sex by moving fingers over my private part i.e. vagina. Therefore, I got frightened by his such act. I informed my brother Amar residing in Idar about such indecent acts of my husband over phone and silently slept in the main room of our house. I and my husband woke up in the morning next day. After having breakfast, when my husband went for the job, I grabbed the opportunity and came to my maternal house in Idar from Adajan Surat. I informed my parents and my brother about indecent acts of my husband and physical and mental harassment being meted out to me. The persons from maternal side held talks with in-laws for compromise in this regard so that our reputation is not tarnished in the society, but they had been telling me till date that, "You can lodge the complaint anywhere you want. Our son will remain as he is and he will not improve." Therefore, I have been compelled to lodge the complaint. It is my lawful complaint against my husband and my in-laws. My witnesses are the persons mentioned in the complaint and other persons, who may be found during the investigation. The facts of my complaint as dictated are true and correct. “ Ratio of the case - Gujarat High Court has recently observed that the total statutory abolition of the marital rape exemption is the first necessary step in teaching societies that dehumanized treatment of women will not be tolerated and that the marital rape is not a husband’s privilege, but rather a violent act and an injustice that must be criminalized. The Court has summarized the principles as follows; The husband cannot be prosecuted for the offence of rape punishable under section 376 of the IPC at the instance of his wife as the marital rape is not covered under section 375 of the IPC. The husband cannot be prosecuted for the offence of rape at the instance of his wife in view of Exception-II in section 375 of the IPC, which provides that sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape. A wife can initiate proceedings against her husband for unnatural sex under section 377 of the IPC. Section 377 IPC does not criminalize a particular class of people or identity or orientation. It merely identifies certain acts, which if committed, would constitute an offence. Consent is not a determining criterion in the case of unnatural offences and rather any offence which is against the order of nature and can be described as carnal penetration would constitute an offence under section 377 of the IPC. Except the sexual perversions of sodomy, buggery and bestiallity, all other sexual perversions, would not fall within the sweep of section 377 IPC. More than a prima facie is made out having regard to the nature of the allegations so far as the offence under section 498A of the IPC is concerned. As discussed above, a prima facie case to proceed against the accused-husband for outraging the modesty of his wife could also be said to have been made out. Although section 354 is not one of the offences in the FIR, yet I am of the view that the investigation in this direction is necessary. The exemption given to marital rape, as Justice Verma noted, “stems from a long out-dated notion of marriage which regarded wives as no more than the property of their husbands”. Marital rape ought to be a crime and not a concept. Of course, there will be objections such as a perceived threat to the integrity of the marital union and the possibility of misuse of the penal provisions. It is not really true that the private or domestic domain has always been outside the purview of law. The law against domestic violence already covers both physical and sexual abuse as grounds for the legal system to intervene. It is difficult to argue that a complaint of marital rape will ruin a marriage, while a complaint of domestic violence against a spouse will not. It has long been time to jettison the notion of ‘implied consent’ in marriage. The law must uphold the bodily autonomy of all women, irrespective of their marital status. Way back in the 1800s, almost around 125 years back, there was a situation that brought forth to the law makers. A girl aged 11 years was brutally raped by her 35 year old husband. The then colonial government proposed to amend the age of consent for a girl from 10 to 12 years, yet, this idea was criticized at large but only after much acrimony and argument, the same was amended in 1891. In the words of Dr. B.R. Ambedkar, “realizing depth of the degradation to which the so-called leaders of the peoples had fallen.... any sane man, could any man, with a sense of shame, oppose so simple a measure? But it was opposed...” Dr. B.R. Ambedkar referred to the idea of necessity in the law that has been needed since then. I wonder how Dr. B.R. Ambedkar would have seen the present day scenario when no one is willing to even discuss to reform the criminalization of marital rape. A law that does not give married and unmarried women equal protection creates conditions that lead to the marital rape. It allows the men and women to believe that wife rape is acceptable. Making wife rape illegal or an offence will remove the destructive attitudes that promote the marital rape. Such an action raises a moral boundary that informs the society that a punishment results if the boundary is transgressed. The Husbands may then begin to recognize that marital rape is wrong. Recognition coupled with the criminal punishment should deter the husbands from raping their wives. Women should not have to tolerate rape and violence in the marriage. The total statutory abolition of the marital rape exemption is the first necessary step in teaching societies that dehumanized treatment of women will not be tolerated and that the marital rape is not a husband's privilege, but rather a violent act and an injustice that must be criminalized.