THE All India Democratic Women’s Association (AIDWA), in a statement issued on March 4, has expressed deep concern about a judgement from the Chhattisgarh High Court which exonerated a man against his conviction under Sections 377 (unnatural sex), 376 (rape), and 304 (culpable homicide not amounting to murder). The victim in the case was the man’s wife who had clearly stated that he had sexually assaulted her against her will by inserting his hand in her anus. The injury caused to the victim was so severe that she died in the hospital a few days later. The postmortem report in the case had clearly stated that there were perforations in the rectum and the patient had died of peritonitis and rectal perforation. The dying declaration of the victim was also recorded before the magistrate in which she had stated that she became ill after forceful sexual intercourse by her husband. The victim had narrated the incident to her neighbours and her sister-in-law the very next day and had been taken to the hospital.

The Chhattisgarh High Court, however, doubted the veracity of the victim’s dying declaration for minor inconsistencies. It also did not take into account that the victim had repeatedly made the statement that her husband had forcefully had sexual intercourse with her. In spite of the fact that the Supreme Court had not struck down Section 377 of the IPC and had just made it inapplicable to consenting adults, the Chhattisgarh High Court misapplied the law. By a strange, twisted reasoning, the Court held that Section 377 will not be applicable as it is contradictory or repugnant to the new Section on rape. In any case it held that the marital rape exception would apply to Section 377 also. This is not correct as the Section 377 has not carved out an exception for a husband forcefully committing sexual acts on his wife.

It is relevant to mention that in two prior judgements from the Karnataka High Court and the Gujarat High Court, the courts had held that the marital rape exception would not apply in cases in which the husband has treated his wife with brutality. Both these courts had commented that it did not matter whether the man who commits these horrific sexual crimes is the victim’s husband or not. They had further held that it was discriminatory to exempt a man who had committed rape merely on the ground that he was the woman’s husband.

Several countries across the world, have done away with the marital rape exception, including the UK, from whom we had inherited the marital rape exception as a married woman was considered the property of her husband. AIDWA is currently fighting a case in the Supreme Court to get rid of the marital rape exception. After the Constitution of India came into place, women including married women, have the right to equality and the right to live with dignity, free from violence which perpetuates subordination and an unequal status.

Laws like Section 85 of the BNS (erstwhile 498A) recognise the effect of domestic violence and punish both mental and physical cruelty. The Domestic Violence Act also gives certain rights to women, including a right of separate residence in cases of domestic violence. AIDWA therefore demands that the government should delete the marital rape exception and punish husbands for the violence they commit on their wives.