"Rape Is Rape Even When Committed By Husband": Gujarat High Court

A rape is a rape, even when it is committed by a man on his wife, the Gujarat High Court has observed, citing that the silence shrouding sexual violence against women in India needs to be broken.

In an order passed recently, Justice Divyesh Joshi observed that the actual incidences of violence against women in India are probably much higher than what the data suggests, and women may continue to face hostility and remain in environments where they are subject to violence.

Social attitude typically characterises certain behaviours such as stalking, shades of verbal and physical assault, and harassment as "minor" offences, which are "regrettably" not only trivialised or normalised but even romanticised and promoted in popular lore such as cinema, the order stated.

The attitudes which view sexual crimes through the prism of "boys will be boys" and condone them, nevertheless, "have a lasting and pernicious effect on the survivors", it said.

The court made these observations while rejecting the regular bail plea of a woman arrested for subjecting her daughter-in-law to cruelty and criminal intimidation while her husband and son raped and filmed her nude to post videos on pornography sites to earn money.

"In most of the cases of (assault or rape on a woman), the usual practice is that if the man is the husband, performing the very same acts as that of another man, he is exempted. In my considered view, the same 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", the court said.

The Constitution treats a woman as equal to a man and considers marriage as an association of equals, the order stated.

Gender violence is "most often unseen and is shrouded in a culture of silence", and the causes and factors of violence against women include entrenched unequal power equations between men and women, "aggravated by cultural and social norms, economic dependence, poverty and alcohol consumption, etc", it said "In India, the culprits are often known to the woman; the social and economic "costs" of reporting such crimes are high. 

General economic dependence on family and fear of social ostracisation act as significant disincentives for women to report any kind of sexual violence, abuse or abhorrent behaviour," it observed.

Therefore, the actual incidence of violence against women in India is probably much higher than the data suggests, and women may continue to face hostility and have to remain in environments where they are subject to violence, it said.

"This silence needs to be broken. In doing so, men, perhaps more than women, have a duty and role to play in averting and combating violence against women," the court said.

It further observed that marital rape is illegal in 50 American states, three Australian states, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia and several other countries.

Even the United Kingdom has abolished the exception given to husbands, it said.

As per the case details, the victim's husband, father-in-law and mother-in-law were arrested after an FIR was registered at the Rajkot cyber crime police station under sections 354 (A) (unwelcome and explicit sexual behaviour, demands sexual favours, shows pornography against a woman's will), 376 (rape), 376 (D) (gang rape), 498 (husband or the relative of the husband subjects such woman to cruelty), 506 (criminal intimidation), 508 (induce a person to believe that if he does not do a particular act, he will be punished by God), and 509 (sexual harassment) of the Indian Penal Code.

According to the prosecution, the applicant's son shot nude videos of his wife and their intimate moments on his mobile phone and forwarded them to his father. The applicant was aware of the same, as the acts were done in her presence.

The family needed money to prevent the sale of their hotel by their business partners. The victim's father-in-law also molested her when she was alone, the prosecution alleged.

The court noted that the applicant was aware of the illegal and shameful act, and by not preventing her husband and son from doing such an act, she had played an equal role.

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