Can a Husband be held
guilty of Gang Rape on his own wife?
This article is written by Manmohan Singh
Narula, Supreme Court Lawyer & Legal Head of Rem Juris and edited by Sarabjeet Singh and Nisha.
Law:-
“375. Rape.—A man is said to commit “rape” if he—
(a) penetrates his penis, to any extent,
into the vagina, mouth, urethra or anus of a woman or makes her to do so with
him or any other person; or
(b) inserts, to any extent, any object or a
part of the body, not being the penis, into the vagina, the urethra or anus of
a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a
woman so as to cause penetration into the vagina, urethra, anus or any part of
body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus,
urethra of a woman or makes her to do so with him or any other person,
under the circumstances falling under any of the following
seven descriptions—
First.—Against her will.
Secondly.—Without her
consent.
Thirdly.—With her consent,
when her consent has been obtained by putting her or any person in whom she is
interested, in fear of death or of hurt.
Fourthly.—With her consent,
when the man knows that he is not her husband and that her consent is given
because she believes that he is another man to whom she is or believes herself
to be lawfully married.
Fifthly.—With her consent
when, at the time of giving such consent, by reason of unsoundness of mind or
intoxication or the administration by him personally or through another of any
stupefying or unwholesome substance, she is unable to understand the nature and
consequences of that to which she gives consent.
Sixthly.—With or without
her consent, when she is under eighteen years of age.
Seventhly.—When she is
unable to communicate consent.
Explanation 1.—For the purposes of this section, “vagina” shall also include
labia majora.
Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by
words, gestures or any form of verbal or non-verbal communication, communicates
willingness to participate in the specific sexual act:
Provided that a woman who does not physically
resist to the act of penetration shall not by the reason only of that fact, be
regarded as consenting to the sexual activity.
Exception 1.—A medical procedure or intervention shall not constitute rape.
[Exception 2.—Sexual
intercourse or sexual acts by a man with his own wife, the wife not being under
eighteen* years of age, is not rape].
{*Independent Thought Vs. Union of India and Anr.
The court
held that “In view of the above discussion, I am clearly of the opinion that
Exception 2 to Section 375 IPC in so far as it relates to a
girl child below 18 years is liable to be struck down on the following
grounds:–
(i) it is
arbitrary, capricious, whimsical and violative of the rights of the girl child
and not fair, just and reasonable and, therefore, violative of Article 14, 15
and 21 of the Constitution of India;
(ii) it
is discriminatory and violative of Article 14 of the Constitution of
India and;
(iii) it
is inconsistent with the provisions of POCSO, which must prevail.
Therefore,
Exception 2 to Section 375 IPC is read down as follows:
“Sexual
intercourse or sexual acts by a man with his own wife, the wife not being 18
years, is not rape”.
It is,
however, made clear that this judgment will have prospective effect.
It is also clarified that Section 198(6) of the Code will
apply to cases of rape of “wives” below 18 years, and cognizance can be taken
only in accordance with the provisions of Section 198(6) of the
Code.
At the cost of repetition, it is reiterated that nothing said in
this judgement shall be taken to be an observation one way or the other with
regard to the issue of “marital rape”.}
Section 376-B — Sexual
Intercourse by Husband upon his wife during separation
Whoever has sexual intercourse with his own wife, who is
living separately, whether under a decree of separation or otherwise, without
her consent, shall be punished with imprisonment of either description for a
term which shall not be less than two years but which may extend to seven
years, and shall also be liable to fine.
Explanation.— In this section, “sexual intercourse” shall mean any of
the acts mentioned in clauses (a) to (d) of Section 375.]
[376-D. Gang rape.—Where a woman is raped by
one or more persons constituting a group or acting in furtherance of a common
intention, each of those persons shall be deemed to have committed the offence
of rape and shall be punished with rigorous imprisonment for a term which shall
not be less than twenty years, but which may extend to life which shall mean
imprisonment for the remainder of that person's natural life, and with fine:
Provided that such fine shall be just and
reasonable to meet the medical expenses and rehabilitation of the victim:
Provided further that any fine imposed under this
section shall be paid to the victim.]
[376-DA. Punishment for gang rape on woman under
sixteen years of age.—Where a woman under sixteen years of age is raped by
one or more persons constituting a group or acting in furtherance of a common
intention, each of those persons shall be deemed to have committed the offence
of rape and shall be punished with imprisonment for life, which shall mean
imprisonment for the remainder of that person's natural life, and with fine:
Provided that such fine shall be just and
reasonable to meet the medical expenses and rehabilitation of the victim:
Provided further that any fine imposed under this
section shall be paid to the victim.]
[376-DB. Punishment for gang rape on woman under
twelve years of age.—Where a woman under twelve years of age is raped by
one or more persons constituting a group or acting in furtherance of a common
intention, each of those persons shall be deemed to have committed the offence
of rape and shall be punished with imprisonment for life, which shall mean
imprisonment for the remainder of that person's natural life, and with fine, or
with death:
Provided that such fine shall be just and
reasonable to meet the medical expenses and rehabilitation of the victim:
Provided further that any fine imposed under this
section shall be paid to the victim.]
Gang Rape- Joint Liability:-
Where a women is raped by one or more in a group of
persons acting in furtherance of their common intention, each of the persons
shall be deemed to have committed gang rape and all of them shall be liable to
be punished under section 376-D of IPC (Muikesh vs. State (Nct of Delhi).
In Ashok Kumar v.
State of Haryana, this Court observed:
...In order to establish an offence under
Section 376(2)(g) IPC (now Amended), read with Explanation I thereto, the
prosecution must adduce evidence to indicate that more than one accused had
acted in concert and in such an event, if rape had been committed by even one,
all the accused will be guilty irrespective of the fact that she had been raped
by one or more of them and it is not necessary for the prosecution to adduce
evidence of a completed act of rape by each one of the accused. In other words,
this provision embodies a principle of joint liability and the essence of that liability
is the existence of common intention; that common intention presupposes prior
concert which may be determined from the conduct of offenders revealed during
the course of action and it could arise and be formed suddenly, but, there must
be meeting of minds. It is not enough to have the same intention independently
of each of the offenders. In such cases, there must be criminal sharing marking
out a certain measure of jointness in the commission of offence.
In Bhupinder Sharma
v. State of Himachal Pradesh, the observations made by an earlier Bench in
Pramod Mahto and Ors. v. State of Bihar MANU/SC/0416/1989 : 1989CriLJ1479 ,
were reiterated by this Court as follows:
In cases of gang rape
the proof of completed act of rape by each accused on the victim is not
required. The statutory intention in introducing Explanation I in relation to
Section 376(2)(g) (now Amended) appears to have been done with a view to
effectively deal with the growing menace of gang rape. In such circumstances,
it is not necessary that the prosecution should adduce clinching proof of a
completed act of rape by each one of the accused on the victim or on each one
of the victims where there are more than one in order to find the accused
guilty of gang rape and convict them under Section 376 IPC.
Supreme Court in Priya
Patel v. State of M.P. and Anr., has observed as follows:
...By
operation of the deeming provision, a person who has not actually committed
rape is deemed to have committed rape even if only one of the group in furtherance
of the common intention has committed rape. 'Common intention' is dealt with in
Section 34 and provides that when a criminal act is done by several persons in
furtherance of the common intention of all, each of such persons is liable for
that act in the same manner as if it was done by him alone. 'Common intention'
denotes action in concert and necessarily postulates a pre-arranged plan, a
prior meeting of minds and an element of participation in action. The acts may
be different and vary in character, but must be actuated by the same common
intention, which is different from same intention or similar intention. The
sine qua non for bringing in application of Section 34 IPC that the act must be
done in furtherance of the common intention to do a criminal act. The
expression 'in furtherance of their common intention' as appearing in the
Explanation to Section 376(2) relates to intention to commit rape....
10.
To bring the offence of rape within the purview of Section 376(2)(g (now
Amended), IPC, read with Explanation 1 to this Section, it is necessary for the
prosecution to prove:
(i)
that more than one person had acted in concert with the common intention to
commit rape on the victim;
(ii)
that more that one accused had acted in concert in commission of crime of rape
with pre-arranged plan, prior meeting of mind and with element of participation
in action. Common intention would be action in consort in pre-arranged plan or
a plan formed suddenly at the time of commission of offence which is reflected
by element of participation in action or by the proof of the fact of inaction
when the action would be necessary. The prosecution would be required to prove
pre- meeting of mind of accused persons prior to commission of offence of rape
by substantial evidence or by circumstantial evidence; and
(iii)
that in furtherance of such common intention one or more persons of the group
actually committed offence of rape on victim or victims. Prosecution is not
required to prove actual commission of rape by each and every accused forming
group.
On
proof of common intention of the group of persons which would be of more than
one, to commit the offence of rape, actual act of rape by even one individual
forming group, would fasten the guilt on other members of the group, although
he or they have not committed rape on the victim or victims.
It is settled law
that the common intention or the intention of the individual concerned in
furtherance of the common intention could be proved either from direct evidence
or by inference from the acts or attending circumstances of the case and
conduct of the parties. Direct proof of common intention is seldom available
and, therefore, such intention can only be inferred from the circumstances
appearing from the proved facts of the case and the proved circumstances.
In the matter of Pardeep
Kumar vs. Union Administration, Chandigarh the Hon'ble Supreme Court has
further held that to bring home the offence within the purview of Section
376(2)(g) (now Amended) of I.P.C. read with explanation 1 to this Section, it
is necessary for the prosecution to prove:
(i) that more than
one person had acted in concert with the common intention to commit rape on the
victim;
(ii) that more than
one accused had acted in concert in commission of crime of rape with
pre-arranged plan, prior meeting of mind and with element of participation in
action. Common intention would be action in consort in pre-arranged plan or a
plan formed suddenly at the time of commission of offence which is reflected by
element of participation in action or by the proof of the fact of inaction when
the action would be necessary. The prosecution would be required to prove
pre-meeting of mind of accused persons prior to commission of offence of rape
by substantial evidence or by circumstantial evidence; and
(iii) that in
furtherance of such common intention one or more persons of the group actually
committed offence of rape on victim or victims. Prosecution is not required to
prove actual commission of rape by each and every accused forming group.
In Sunil @ Sumit Vs. State of Maharashtra,
Hon’ble High Court of Bombay held that even an abettor in rape case will face same punishment
as rape accused.
In
Darshan Ram Vs. State of Haryana, Hon’ble Punjab and Haryana High Court relied
upon guidelines in paragraph 17 of the decision of the supreme court in the
case of State of Maharashtra Vs. Chandraprakash Kewalchand Jain, 1990 (1) RCR
411 : (1990) 1 SCC 550 :-
“We think it proper,
having regard to the increase in the number of sex-violation cases in the
recent past, particularly cases of molestation and rape in custody, to remove
the notion, if it persists, that the testimony of a woman who is a victim of
sexual violence must ordinarily be corroborated in material particulars except
in the rarest of rare cases. To insist on corroboration except in the rarest of
rare cases is to equate a woman who is a victim of the lust of another with an
accomplice to a crime and thereby insult womanhood. It would be adding insult
to injury to tell a woman that her story of woe will not be believed unless it
is corroborated in material particulars as in the case of an accomplice to a
crime. Ours is a conservative society where it concerns sexual behaviour. Ours
is not a permissive society as in some of the Western and European countries.
Our standard of decency and morality in public life is not the same as in those
countries. It is, however, unfortunate that respect for womanhood in our
country is on the decline and cases of molestation and rape are steadily
growing. An Indian woman is now required to suffer indignities in different
forms, from lewd remarks to eve-teasing, from molestation to rape. Decency and
morality in public life can be promoted and protected only if we deal strictly
with those who violate the societal norms. The standard of proof to be expected
by the Court in such cases must take into account the fact that such crimes are
generally committed on the sly and very rarely direct evidence of a person
other than the prosecutrix is available. Courts must also realise that
ordinarily a woman, more so a young girl, will not stake her reputation by
levelling a false charge concerning her chastity.”
Further
the court in Darshan Ram Vs. State of Haryana, in paragraph no. 19 to 22
held that :-
In that event learned
counsel argued that so far as the husband of Sona Devi is concerned he cannot
be held guilty of the offence punishable under Section 376 Indian Penal Code
because Sona Devi was above the age of 15 years and even if he had sexual
intercourse with her against her wish, it would not be rape. Expression rape
has been defined in Section 375 of the Penal Code in following words:-
"375. Rape. - A
man is said to commit "rape" who, except in the case hereinafter
excepted, has sexual intercourse with a woman under circumstances falling under
any of the six following descriptions:-
First. - Against her
will.
Secondly. - Without
her consent.
Thirdly. - With her
consent, when her consent has been obtained by putting her or any person in
whom she is interested in fear of death or of hurt.
Fourthly. - With her
consent, when the man knows that he is not her husband and that her consent is
given because she believes that he is another man to whom she is or believes
herself to be lawfully married.
Fifthly. - With her
consent, when, at the time of giving such consent, by reason of unsoundness of
mind or intoxication or the administration by him personally or through another
of any stupefying or unwholesome substance, she is unable to understand the
nature and consequences of that to which she gives consent.
Sixthly. - With or
without her consent, when she is under sixteen years of age."
20. It is on the
strength of this provision that the above said argument is built. In this
regard there is no controversy. But explanation (1) of Section 376 Indian Penal
Code has been added specially to deal with gang rape cases. The said
explanation (1) of Section 376 Indian Penal Code reads as under :-
"Explanation 1.
- Where a woman is raped by one or more in a group of persons acting in
furtherance of their common intention, each of the persons shall be deemed to
have committed gang rape within the meaning of this sub-section."
21. By legal fiction
by virtue of the said explanation it has been incorporated that if a woman is
raped by a group of persons, then each of the person who acted in furtherance
of their common intention is deemed to have committed the rape. It is in
evidence that husband of Sona Devi was gagging the mouth of the prosecutrix and
threatened her. The intention is obvious. He was helping others, Even if his
case did not fall under section 375 of the Indian Penal Code, still by virtue
of Explanation (1) of Section 376 Indian Penal Code, he will be deemed to have
committed the said offence.
22. It is unfortunate
that Sona Devi had been raped by near relatives which in the normal
circumstances would not be believable, still human perversity is not unknown.
The facts of the present case show that there is an exception to the general
belief. The plea of the learned counsel for the appellants that Sona Devi in a
shameless manner was falsely accusing the appellant cannot be believed. For
these reasons, the appeal being without merit, fails and is dismissed.
In
View thereof, we, in the light of Section 375 and 376, are of the firm view
that where a woman is
raped by one or more persons constituting a group or acting in furtherance of a
common intention, {husband assisting or abetting the offence of gang rape on
his own wife shall also be considered as a member of such group}, each of those
persons shall be deemed to have committed the offence of rape.
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References:
[4] Independent Thought Vs. Union of India and Anr. Writ petition (civil) no.
382 OF 2013; (2017)10 SCC 800; (2018)1 SCC (Cri)13[5] Section 101
of the Companies Act, 2013
[12] Darshan
Ram Vs. State of Haryana {1996 SCC OnLine P&H 579 :
(1996) 3 RCR (Cri) 128 : Criminal Appeal No. 290-SB of 1995 : MANU/PH/1180/1996
[13] Pramod Mahto and Ors.
v. State of Bihar MANU/SC/0416/1989 : 1989CriLJ1479
