IN WRIT PETITION No. 48367 OF 2018
CASE COMMENTARY
1. INTRODUCTION: The aforementioned case pertains to the issue of non-consensual intercourse within marriage, generally accounts to as marital rape. Marital rape is rape committed within the arrangement of marriage. The offence of marital rape is committed when the husband forces sexual intercourse on his wife by the use of force or when the concurrence of the woman is absent. Marital rape is a form of domestic violence and sexual abuse by a husband on his wife. Section 3 of the Protection of Women from Domestic Violence Act[1] explains that the act of “sexual abuse” as well as “verbal and emotional abuse” is included in domestic violence. Marital rape is easily covered by both. On 21 December 2023, Parliament passed the Bharatiya Nyaya Sanhita, 2023. Section 63 of the Act which deals with the act of “rape” also includes the same marital rape exception as found under Section 375 of the IPC.
Section 375 of the Indian Penal Code[2], broadly covers the provisions of rape, including gang rape and rape by employer, but marital rape has been exempted under exception 2 of Section 375[3]. In this context, the exception asserts that the sexual intercourse or activities by a man with his wife does not amount to rape unless the woman is under the age of eighteen years. Further, the court remarked that marital rape is illegal in many countries including the United Kingdom from where the IPC was drawn; the exception of the martial rape was removed in the year 1991.
In the case of Hrishikesh Sahoo v. State of Karnataka and Ors[4], the Court held that “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. Such acts of husbands scar the soul of the wives.” Further, the court also emphasized that the institution of marriage does not give any male special privilege or a license for unveiling his inner ‘brutal breast’ on his wife.
The court additionally stated that for ages, husbands have treated their wives as property or chattel where they believe they have an unsaid control over their wife’s body, mind, and soul once they marry them. But clearly the court strongly opposed this outdated belief and tradition and highlighted that this thought must be completely erased (effaced) from our belief and our law. The institution of marriage doesn’t give license to the husband to do whatever pleases him. Therefore the court held that a man sexually assaulting, abusing or raping a woman is punishable under section 64[5], regardless if the man is in arrangement of marriage with the women.
2. FACTS: The petitioner, accused no. 1, Hrishikesh Sahoo married Mrs.Bratati @ Pinky on 20.06.2006, at Bhuvaneshwar. Although the couple was soon blessed with a child, but gradually the relationship became marred by the husband’s physical and mental abuse towards his wife.
On 21st March, 2017, his wife filed a police complaint accusing him of repeated sexual and physical abuse, leading to FIR No. 13/2017 for offenses under Section 506[6], Section 498A[7], Section 323[8], Section 377[9] of the IPC, and Section 10 of the POCSO Act. She accused him of unforeseen charges which were brutal in nature, multiple offences under the Indian Penal Code, (IPC), including rape, cruelty and making threats of causing harm. According to her complaint, her husband, Hrishikesh Sahoo used to force himself on her even during pregnancy; she also described instances of violent sexual acts, including unnatural sex that was entirely non-consensual. The accusations did not end here; she accused him of molesting her daughter and abusing their minor daughter and was charged with sexual assault under the Protection of Children from SexualOffences Act[10]. Because of that, the POCSO Act came into play along with IPC provisions like Section 376 (rape)[11], Section 377 (unnatural sex)[12], Section 498A (cruelty)[13], and others like Section 354[14] and Section 506[15]. The parents of the petitioner along with the petitioner were also charge sheeted as accused Nos.2 and 3 and have been discharged pursuant to an order passed by this Court in Crl.P.No.423/2018 disposed on 03.07.2018.
Sahoo was arrested, and a charge sheet was filed. However, before the trial could take full swing, he moved the matter to the Karnataka High Court. Before the Sessions Court could trial the case, the case was moved by the petitioner, accused no. 1, Hrishikesh Sahoo at the Karnataka High Court seeking bail as he had spent one year and seven months already in the jail before the trial even started. He appealed the court to grant him bail as he believed that his case would fall under the “marital rape exception” expressed under Section 375[16]. This exception states, “Sexual intercourse or sexual acts by a man with his own wife; the wife not being under fifteen years of age, is not rape”.
3. ISSUE:
- Legality of Arrest: Whether the arrest of Hrishikesh Sahoo was conducted in accordance with the provisions of the Code of Criminal Procedure (CrPC)[17]?
- Efficacy: Does the exception to marital rape discard the wife’s right to privacy?
- Application of Legal Provisions: Whether the sections of the IPC under which the appellant was charged were aptly applied to the facts of the case?
- Procedural Fairness: Whether the trial was conducted in a manner that adhered to the principles of natural justice and procedural fairness?
- Whether cognizance being taken against the petitioner-husband for offence punishable under Section 376 of IPC[18] is tenable in law?
- Whether the prosecution notwithstanding the presumption under Sections 29 and 30 of the Act has to prove the foundational facts beyond all reasonable doubt?
- Whether charge sheet against the petitioner should be altered to include addition of the offence punishable under Section 377 of IPC[19]?
4. CONTENTION:
Petitioner’s Argument: Hrishikesh Sahoo, the petitioner, the accused no. 1, solely argued that the case was not maintainable as it would fall under the exception provided in the Section 375[20]. It indicated that sexual intercourse between husband and his woman would not amount to rape unless the woman is under the age of eighteen years. The petitioner/appellant never disputed the claims made by the wife but contended that even if it was true it does not amount the act to be ‘rape’. The petitioner/appellant also pointed out that the arrest made was arbitrary and violated his constitutional rights under Article 21 of the Indian Constitution[21]. It further argued that the prosecution failed to submit any concrete evidence against the alleged accusation placed on him by the complainant. The petitioner/appellant contend that the key witnesses were either coerced or had conflicting statements, that the witness statement was not enough reliable to hold him imprison. The petitioner/appellant also indicated that the Sessions court had misapplied certain provisions which resulted in an unjust verdict for him.
Respondent’s Argument: The respondent at first opposed the argument made by the petitioner/appellant about the arbitrary arrest and maintained that the arrest was lawfully executed and all the related law and procedure was followed while arresting the petitioner/appellant, which was made on the basis of substantial prima facie evidence. It defended the credibility of the witnesses and assured the court that the statement made by them was made independently without any external coercion. The respondent supported that the wife was brutally and non-consensually, forced to get sexually involved with the man that deeply left her in pain and fear. They argued that basically excluding married women from the section 375[22] would result to affecting the protection provided under this section. The law simply adheres as to no married woman has rights upon their own body.
5. RATIONALE: The Court observed the husband’s plea and by all reasonable means rejected the petition to drop charges of rape under section 375[23], section 376[24], section 377[25] of the IPC, proclaiming that Exception 2 to Section 375 of the IPC[26], which exempts marital rape were not applicable in this case. TheCourtfurther noted that the doctrine of Coverture, which presumes that a woman once married to a man has no legal entity of her own i.e., the woman and her husband is one legal entity and the woman loses all her capacity as individual. In this case the doctrine means that it is presumed that the husband has consent of the woman as they are married to forcefully or in whatever way pleases him can intercourse with her, is outdated. “The communications that are made or voluntary letters written by both the wife and daughter are so chilling and abhorrent that they cannot be reproduced in the order,” the Judge observed.
Justice M. Nagaprasanna relied on Justice J.S. Verma Committee report (2013) which suggested removing the marital rape exception and grounded on this he denied the petitioner’s plea. The Union of India, in its affidavit, argued that criminalizing marital rape could be harsh and that the court should award and enact alternative legal remedies provided to women by the legal system.
It also laid down that marital rape should be treated differently from other forms of rape as it includes the institution of marriage, as conceding that the marriage does not entirely destroys wife’s capacity as an individual.
The court found that the prosecution has established a credible link between the accused and his alleged crimes by providing supportive and circumstantial evidence. It determined that the witnesses’ accounts were consistent and corroborative, therefore enhanced the overall reliability of the statements made by the witnesses; also invoked that the allegations and claims made by the wife under the sections of IPC were correctly invoked.
6. DEFECTS OF LAW:
- Lack of Prima Facie Evidence (Procedural Defect): The FIR and charge sheet failed to disclose any specific or concrete material to establish the essential ingredients of the offences alleged. The allegations were vague and lacked the necessary factual foundation to attract the penal provisions invoked. The Court held that continuing the criminal proceedings in such a case would amount to an abuse of the process of law.
- Misapplication of Penal Provisions (Substantive Defect): The invocation of Sections 354A (sexual harassment)[27], section 354D (stalking)[28], and section 509 (insulting the modesty of a woman)[29] IPC was found to be legally unsustainable. The Court observed that the allegations, even if taken at face value, did not satisfy the statutory ingredients of these offences. Similarly, Section 66C[30] and Section 67[31] of the IT Act (identity theft and publishing obscene material) were invoked without any supporting digital evidence or forensic analysis.
- Failure to Apply Judicial Mind at the Stage of Cognizance: The Magistrate took cognizance of the offences without critically examining whether the allegations in the complaint and the material in the charge sheet made out a triable case. This reflects a procedural lapse and a failure to exercise judicial discretion, which is a mandatory requirement under Section 190 of the CrPC[32].
7. INFERENCE: The Supreme Court upheld the conviction of Hrishikesh Sahoo, confirming that the prosecution had met the requisite burden of proof. This judgment reinforces the judiciary’s stance on the necessity of credible and corroborative evidence in securing convictions, especially in cases reliant on circumstantial evidence. Serves as a precedent for ensuring that arrests and subsequent trials adhere strictly to procedural and substantive legal standards, thereby safeguarding the rights of the accused while upholding public interest.
Virdhi Agarwal
Sister Nivedita University
[1] 2005
[2] the Indian Penal Code 1860
[3] Supra Note 2
[4] Hrishikesh Sahoo v. State of Karnataka and Ors 2022 SCC 371 (India)
[5] the Bharatiya Nyaya Sanhita, 2023
[6] Supra Note 2
[7] Supra Note 2
[8] Supra Note 2
[9] Supra Note 2
[10] the Protection of Children from SexualOffences Act 2012
[11] Supra Note 2
[12] Supra Note 2
[13] Supra Note 2
[14] Supra Note 2
[15] Supra Note 2
[16] Supra Note 2
[17] the Code of Criminal Procedure (CrPC) 1973
[18] Supra Note 2
[19] Supra Note 2
[20] Supra Note 2
[21] the Indian Constitution
[22] Supra Note 2
[23] Supra Note 2
[24] Supra Note 2
[25] Supra Note 2
[26] Supra Note 2
[27] Supra Note 2
[28] Supra Note 2
[29] Supra Note 2
[30] The Information Technology Act, 2000
[31] Supra Note 30
[32] Supra Note 17