In a very significant, short and sagacious judgment titled Anjanaben Modha vs State of Gujarat in R/Criminal Misc. Application (For Successive Regular Bail – After Chargesheet) No. 20522 of 2023 that was pronounced as recently as on December 8, 2023, the Gujarat High Court has minced absolutely no words in asserting most firmly that, “Rape is rape even if committed by a husband on his wife.” It must be noted that the Single Judge Bench comprising of Hon’ble Mr Justice Divyesh A Joshi has denied bail to the man who argued that he was immune from the rape charge because he was the victim’s husband. The Bench asserted unequivocally that, “A man is a man; an act is an act; rape is rape, be it performed by a man, the ‘husband’ on the woman ‘wife’.”
While holding so, the Bench has rejected a bail application that had been filed by a woman accused of complicity and abetting sexual assault in her daughter-in-law’s case of rape by her son and domestic violence against her husband and in-laws. It also must be mentioned here that the complainant had married in Rajkot in 2022 and had alleged that her husband and in-laws had recorded their intimate moments using a bedroom CCTV camera to generate income. How could this be allowed under any circumstances to go unpunished? So no wonder that the impunity was rightly shattered by the Gujarat High Court in this leading case!
At the very outset, this brief, brilliant, bold and balanced oral judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Divyesh A Joshi of the Gujarat High Court at Ahmedabad sets the ball rolling by first and foremost putting forth in para 1 that, “The present successive application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with the FIR being C.R. No.I-11208057230026 of 2023 registered with the Rajkot Cyber Crime Police Station, Rajkot of the offence punishable under Sections 354(a)(c), 376, 376(D), 498(a), 506(2), 508, 509, 34, 114 and 201 of IPC as well as Sections 66(e) and 67(a) of I.T. Act.”
To put things in perspective, the Bench then envisages in para 2 while dwelling on the facts that, “FACTUAL EXPOSE’ as borne out from the pleadings are as follows: 2.1 That the complainant got married with the son of the applicant-accused somewhere in the year 2022 and, thereafter, she started living at her matrimonial home. There are in all total three members at her marital home i.e., mother-in-law, father-in-law and her husband. In the wedlock, two baby boys were born. It is alleged that after sometime of the marriage, the father-in-law started instigating her husband to record the nude photographs and videos of the complainant so that they can upload it on one particular porn website. Accordingly, the husband started recording her nude videos in his mobile and thereafter forwarded it on the mobile of her father-in-law. The mother-in-law of the complainant was also aware about the same and all these acts were being done in the presence of the mother-in-law also. As per the say of the complainant, as her marital family was in desperate need of money to prevent their hotel being sold out by the other partners, they decided to record the nude videos of the complainant to upload on one porn website against which they will get money. Therefore, the husband of the complainant started recording their intimate moments in the camera of his mobile. The complainant told her not to do so, however, her husband said her to do whatever his father is saying. She then complained to her mother-in-law, who also sided with her son an husband and told the complainant to act as per the say of her son and husband. Not knowing what to do, complainant merely relented. It is also alleged that when the complainant was alone at home, the father-in-law was molesting her. The husband of the complainant made her to do things, which according to the complainant, were unnatural. Thus, to fulfill their common intention, all the accused persons, in connivance with each other, have committed the said offence. The complainant had left with no other option but to seek the legal help. Therefore, she gathered courage and lodged the impugned FIR against all the accused persons.”
As we see, the Bench then after hearing the parties and perusing the material on record stipulates in para 9 that, “In the light of the submissions made by the respective learned advocates, the following points arise for my consideration:
(i) Whether cognizance being taken against the applicant-accuse for offence punishable under Section 376 of IPC is tenable in law?
(ii) Whether the allegations against the applicant-accused for other offences are tenable in law?”
Point No.(i): Whether cognizance being taken against the applicant-accused for offence punishable under Section 376 of IPC is tenable in law?
As things stand, the Bench enunciates in para 10 that, “To consider this issue, it is germane to notice what drove the complainant to register the complaint and what drives the applicant-accused to this Court. The entire issue springs from the complaint registered by the wife alleging commission of brutal sexual acts by the husband, father-in-law and mother-in-law against her. After registration of the complaint, investigation was conducted into the matter. After investigation, the Police have filed their final report/charge sheet.”
Most appallingly, the Bench discloses in para 11 that, “The charge sheet filed by the Police after investigation also depicts graphic details of the demonish lust of the husband of the complainant and her father-in-law whether for money or for sexual satisfaction in which the applicant-accused has also very actively participated. Herein the case on hand, the allegations are very serious in nature. The husband himself has recorded their lovemaking moments in the camera of his mobile which were subsequently shared in one WhatsApp group of the family and also uploaded on one porn website, namely, charubate-free adult. It is not that the husband is doing such an illegal activity with any woman with whom he has an illicit relationship. The victim in the present case is his own wife whose videos were being uploaded on the porn website by her husband itself. The applicant-accused is the mother-in-law of the complainant who was also very well aware about the said fact. The allegations are also to the effect that the father-in-law got installed the C.C.T.V camera in the bedroom of the complainant and both the applicant-accused and the father-in-law were watching the lovemaking moments of her own son and daughter-in-law on the TV screen in their bedroom. Not only that, they were compelled their son to take nude videos and photographs of the complainant and shared it on one family WhatsApp group in which the applicant-accused is also the member of the group. Therefore, it appears that the present applicant-accused was very well aware about such an illegal and shameful act. It is alleged by the complainant that initially when she complained about the sexual assault meted out by her husband and father-in-law to the applicant-accused, she took side of her son and husband and told the complainant to keep quiet. During the course of investigation, the Investigating Officer has retrieved some photographs in which the applicant-accused is clearly shown with her son touching the private part of the complainant. Therefore, it cannot be said that the applicant-accused was not aware about the sexual assault and harassment meted out to the complainant. It is alleged by the complainant that in order to earn money from a particular porn website, they had committed such a heinous act with her as they were in desperate need of money to save their hotel from being sold out by the other partners. Whatever might be the reason behind doing such a heinous and shameful act, the same must be strictly criticized and the accused must be punished in order to prevent commission of such type of offences in future. The applicant-accused being a lady had not done anything to save the integrity of another lady when the complainant told her about each and everything happened with her. She had to prevent her husband and son from doing such an act and by not doing so, she has played an equal role that of the other two accused, i.e, the husband of the complainant and the father-in-law.”
Be it noted, the Bench laudably notes in para 12 that, “Post Republic, India is governed by the Constitution. The Constitution treats woman equal to man and considers marriage as an association of equals. The Constitution does not in any sense depict the woman to be subordinate to a man. The Constitution guarantees fundamental rights under Articles 14, 15, 19 and 21 which are right to live with dignity, personal liberty, bodily integrity, sexual autonomy, right to reproductive choices, right to privacy, right to freedom of speech and expression. Under the Constitution, the rights are equal; protection is also equal.”
Most notably, the Bench mandates in para 13 that, “Marital rape is illegal in 50 American States, 3 Australian States, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia and several others. In the United Kingdom, which the present Code largely draws from, has also removed the exception pursuant to a judgment rendered by the House of Lords in R v. R in the year 1991. Therefore, the Code that was made by the rulers then, has itself abolished the exception given to husbands. Therefore, a man sexually assaulting or raping a woman is amenable to punishment under Section 376 of IPC. In most of the cases of such a nature, 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”.”
Most forthrightly, the Bench propounds in para 14 that, “Gender violence is most often unseen and is shrouded in a culture of silence. The causes and factors of violence against women include entrenched unequal power equations between men and women that foster violence and its acceptability, aggravated by cultural and social norms, economic dependence, poverty and alcohol consumption, etc. 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 ostracization act as significant disincentives for women to report any kind of sexual violence, abuse or abhorrent behaviour. 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. 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.”
While continuing in the same vein, the Bench further hastens to add in para 15 expounding that, “Sexual violence is varied in degree. At the highest (or, rather most aggravated) level, is rape with or without attendant violence. However, there are a substantial number of incidents which fall within the rubric of sexual violence, that amount to offences under various penal enactments. These outlaw behaviours such as stalking, eve-teasing, shades of verbal and physical assault, and harassment. Social attitudes typically characterize this latter category of crimes as “minor” offences. Such “minor” crimes are, regrettably not only trivialised or normalized, rather they are even romanticized and therefore, invigorated in popular lore such as cinema. These attitudes which indulgently view the crime through prisms such as “boys will be boys” and condone them, nevertheless have a lasting and pernicious effect on the survivors.”
It is worth noting that the Bench notes in para 16 that, “The United Nations Organisation has defined “violence against women” as “any act of gender based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.” The effect of offensive behaviour against women, which laws criminalize physical, verbal, or other acts which threaten or give them acute discomfort, undermining their dignity, self-worth and respect, is to silence or subdue the survivor.”
It cannot be glossed over that the Bench notes in para 17 that, “In The Standard of Social Justice as a Research Process, two scholars of psychology made a strong indictment of the (contextually, Canadian) criminal justice process:
“The more general indictment of the current criminal justice process is that the law and legal doctrines concerning sexual assault have acted as the principle [sic] systemic mechanisms for invalidating the experiences of women and children. Given this state of affairs, the traditional view of the legal system as neutral, objective and genderblind is not defensible. Since the system is ineffective in protecting the rights of women and children, it is necessary to re-examine the existing doctrines which reflect the cultural and social limitations that have preserved dominant male interests at the expense of women and children.”
Point No.(ii):
Whether the allegation against the applicant for other offences is tenable in law?
Most clearly, the Bench observes in para 18 that, “This now takes me to the next point with regard to the alleged offences against the applicant which are offences punishable under Sections 498A, 354 and 506 of the IPC. The complaint clearly brings out the offence punishable under Section 498A of the IPC. Section 354 of the IPC which deals with assault or criminal force on a woman with intent to outrage her modesty is clearly met in the complaint. Section 506 of the IPC deals with criminal intimidation which is also met in the complaint.
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