In a case that rocked Gujarat and the whole nation, the Gujarat High Court has observed a major point of view emphasising marital rape.

While a series of petitions seeking to criminalise marital rape are presently pending before the Supreme Court, Justice Divyesh Joshi of the Gujarat High Court has held that “rape is a rape even if it is committed by the victim’s husband.”

The single-judge statement pointed out in the hearing of Rajkot’s horrendous crime scene where the survivor’s husband allegedly used to rape her and recorded it to upload it on a pornographic website.

The father-in-law and mother-in-law of the survivor were also allegedly involved in the crime and used to record intimate relationships between their son and daughter-in-law.

The mother-in-law was not only privy to the actions of her husband and son but also encouraged them.

Opposing the bail plea of the survivor’s mother-in-law, public prosecutor Manan Mehta said that the survivor’s mother-in-law has played a huge role in orchestrating the crime. She allegedly forced the survivor into the act with her father-in-law.

Criminalisation of marital rape

The Rajkot cybercrime branch registered the offence punishable under Sections 354(a)(c), 376, 376(D), 498(a), 506(2), 508, 509, 34, 114, and 201 of the IPC, as well as Sections 66(e) and 67(a) of the IT Act, after the survivor filed an FIR this year.

Drawing instances from around the world, Justice Joshi observed that marital rape is illegal in 50 states of America, three states of Australia, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, the Soviet Union, Poland, Czechoslovakia, and several other nations.

“In the United Kingdom, which the present Indian Penal Code (IPC) is largely drawn from, have also removed the exception (Section 376, popularly known as ‘marital rape exception’) pursuant to a judgment rendered by the upper house of the UK in 1991.”

Justice went on to say that the IPC was made by the rulers then, and they themselves have abolished the exception given to husbands.

Therefore, a man sexually assaulting or raping a woman is amenable to punishment under Section 376 of the IPC.

Taking a strong stance, Justice Joshi said, “In my considered view, the same cannot be countenanced. A man is a man; an act is an act; rape is rape, be it performed by a man, the “husband,” on a woman, the “wife”.”

“Gender violence is most often unseen and is shrouded in a culture of silence.”

Normalisation of such acts

Addressing a broader view prevailing in society, justice talked about a holistic definition of sexual violence and assault.

He said that social attitudes typically characterise incidents like stalking, eve-teasing, verbal and physical assault, and harassment as “minor” offences. Such “minor” crimes are regrettably not only trivialised or normalised; rather, they are even romanticised and therefore invigorated in popular lore such as cinema.

Attitudes that indulgently view crime through prisms, such as “boys will be boys,” and condone them, have a lasting and harmful effect on the survivors.