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A brutal act of sexual assault on the wife, against her consent, albeit by the husband, cannot but be termed to be a rape. Such sexual assault by a husband on his wife will have grave consequences on the mental sheet of the wife, it has both psychological and physiological impact on her. If it is punishable to a man, it should be punishable to a man albeit, the man being a husband and the same was held by High Court of Karnataka through the learned bench led by JUSTICE M. NAGAPRASANNA in the case of HRISHIKESH SAHOO vs. STATE OF KARNATAKA [WRIT PETITION No.48367 OF 2018] on 23.03.2022.

The facts of the case are that the petitioner- accused married the complainant Mrs.Bratati @ Pinky. The couple stayed at various parts of the nation and at the relevant point in time, he was working at Bangalore and also a child was born out of their wedlock. After few years of living together, relationship of the couple gets horribly strained. Many instances of physical and mental torture to the wife and the child led the wife to register a complaint against the husband. The complaint becomes an FIR for offences punishable under Sections 506, 498A, 323, 377 of the Indian Penal Code.

The counsel for petitioner submitted that the FIR was registered for offence punishable under Section 377 of the IPC while the police in their final charge sheet invoked Section 376 and the learned Sessions Judge also took cognizance of the offence. The counsel further submitted that the complaint insofar as it concerns the wife is under Sections 498A, 376, 377 and other allied offences and insofar it concerns the daughter is under the POSCO Act. Both the offences being definite and Courts jurisdiction to try these offences being distinct cannot be tried in the same Court.

The counsel for the complainant submitted that the learned Sessions Judge has rightly taken cognizance of the offence punishable under Section 376 of the IPC as the facts clearly reveal that the petitioner had sex every time with the complainant by torturing and abusing her against her consent and forcibly had his lust fulfilled. In the peculiar facts of this case though exception to Section 375 protects the husband, such protection should not be given in the case at hand. Therefore, the writ petition should be dismissed.

The Court found no fault with the judgment passed by the learned Sessions Judge taking cognizance of the offenses punishable under Section 376 of IPC and framing a charge to that effect. It was stated by the Court that, “if a man, a husband, a man he is, can be exempted from the 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. All human beings under the Constitution are to be treated equally, be it a man, be it a woman and others. Any thought of inequality, in any provision of law, would fail the test of Article 14 of the Constitution.”

Click here to read the Judgment

Judgment reviewed by – Shristi Suman