In the present case, after a few years of living together, the relationship of the couple had become strained. After many instances of physical and mental torture to the wife and the child, the wife registered a complaint against the husband for offences punishable under Sections 506 (punishment for criminal intimidation) 498A (cruelty to wife) 323 (Punishment for voluntarily causing hurt) 377 (Unnatural offences) of the Indian Penal Code (IPC) and Section 10 (aggravated sexual assault) of the Protection of Children from Sexual Offences Act, 2012 (POCSO).

The Special Court framed charges against the petitioner-husband for offences punishable under Sections 376 (rape), 498A and 506 of IPC and Section 5(m) and (l) read with Section 6 of the POCSO Act.

Single-judge Justice M Nagaprasanna said that the institution of marriage cannot be used to confer any special male privilege or a license for unleashing of a “brutal beast” on the wife.

The Court noted that what drove the wife to register the complaint and was the allegation of brutal sexual acts by the husband against her, as also, sexual abuses against the child. As such, the court referred to the complaint and its narration.

The complaint by the wife stated she was victimized to become a sex slave to the husband. It said:

“I have become a sex slave to my husband right from the day of my marriage. I was compelled and forced to have unnatural anal sex, oral sex by imitating the sex films. My husband did not leave me from giving him forcible sex even after pregnancy and had no courtesy to continue with sex even after my baby got terminated.

My husband is totally an inhuman and he forced me to perform all unnatural sex in front of my daughter and many occasions he had beaten her and had forcible sex with me. There was countless sexual harassment which no female in the world would like to express and I want my name and my daughter’s name in the complaint to be undisclosed and punish my husband. I am terrible in untold pains from knowing that my husband had sexually harassed my daughter by bringing her early from school and also I do not want any daughter or any mother to undergo the sufferings which both me and my daughter have suffered.”

Thus, it held that a man sexually assaulting or raping a woman is amenable to punishment under Section 376 of IPC.

It, therefore, concluded that the charge framed against the husband by the Sessions Judge for the offence punishable under Section 376 of the IPC for alleged rape of his wife, in the peculiar facts of this case, does not warrant any interference and is a matter of trial.

Terming the exception for husbands under Section 375 as regressive, the court said that under the Code every other man indulging in offences against woman is punished for those offences.

But, when it comes to Section 375 of IPC the exception springs. In my considered view, the expression is not progressive but regressive, wherein a woman is treated as a subordinate to the husband, which concept abhors equality. It is for this reason that several countries have made such acts of the husband penal by terming it marital rape or spousal rape,” the Court said.

Further, marital rape is illegal in in many other countries, the Court noted, and in the United Kingdom, which the present Indian Penal Code largely draws from, the exception for marital rape was removed in the year 1991.

“Therefore, the Code that was made by the rulers then, has itself abolished the exception given to husbands,” the single-judge said.

The Court did not accept the contention of the petitioner that if the man is the husband, performing the very same acts as that of another man, he is exempted.

The court said, In my considered view, such an argument 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”.”

While upholding the charge of rape against the husband, the court noted that it is not pronouncing on whether marital rape should be recognized as an offence or the exception be taken away by the legislature, and that the Court is concerned only with the charge of rape being framed upon the husband in the present case.