- The Honourable Karnataka High Court in the case of Hrishikesh Sahoo V. State of Karnataka & Ors.[Writ petition no.48367 of 2018] has adjudicated that the exemption of marital rape is not progressive but regressive, a woman is treated as a subordinate to the husband. While denying the exemption of Marital rape, it was observed that the Court did not pronounce upon the validity of such exemption in law. The legislature was to decide on this, after analysis of manifold circumstances. The Court adjudicated upon the charge of rape being framed upon the husband alleging rape on his wife in the present circumstances.
- In the present petition by the accused, the petitioner wanted the criminal proceeding against him to be quashed. It was prayed to declare that Sections 29 and 30 of the POCSO Act were unconstitutional. These were contended to be violative of Articles 14, 19 and 21 of the Constitution.
- The accused was married to the complainant. After a few years of marriage, the relationship between the couple deteriorated. Many instances of physical and mental torture to the wife and the child led to the complainant registering a complaint against the husband on 21.03.2017 under relevant section of IPC and POCSO act.
- The Learned Counsel for the appellant contended that FIR did not contain the offence alleged against the petitioner for the offence punishable under Section 376 of the IPC. FIR that was registered was for offence punishable under Section 377 of the IPC while the police filed their final report/charge sheet invoking Section 376 and the learned Sessions Judge took cognizance of the offence
- It was contended that the presumption under Sections 29 and 30 of the POCSO Act is unconstitutional as it imposes a reverse burden of proving innocence on a presumption that the accused was a woman.
- It was submitted that there was no basis to frame the charge under POCSO Act as there was no medical evidence to prove the commission of any of those offences under those sections.
- Learned counsel for the respondent submitted that the allegations were based on what was noticed in the complaint or subsequent communications of both the mother and daughter.
- The petitioner was a beast in the form of a man and should not be shown any indulgence at the hands of this Court and the trial should be permitted to commence.The petitioner has been delaying the procedure of Court on a number of occasions and has not allowed the trial to commence.While the Sessions Court had also erred in not framing charges, against the accused, under section 377 of IPC
- It was contended that the learned Sessions Judge has rightly taken cognizance of the offence punishable under Section 376 of the IPC as the facts clearly reveal that the accused forcibly had his lust fulfilled and had sex with the complainant torturing and abusing her against her consent.
- The learned Judge observed that the Constitution, a source of all statutes depicts equality. IPC practices discrimination. Under IPC every other man indulging in offences against women would be punished for those offences. But in section 375 an exemption is laid. This expression would not progressive but regressive, a woman is treated as a subordinate to the husband.
- The contents of the complaint clearly put forward tolerance of the wife of the brutal acts of the accused. The learned Sessions Judge made an appropriate decision taking cognizance of the offences punishable under Section 376 of IPC and charge the accused
- With regard to presumption under Sections 29 and 30 of the Act, for the said presumption against the accused the prosecution will have to prove foundational facts beyond all reasonable doubt. The issue has time and again cropped up before the Apex Court or this Court.
- It was held that the prosecution has to prove the foundational facts beyond all reasonable doubt and cannot rest its case on probability, merely because the statute imposes reverse burden. In place of the prosecution proving the guilt, the accused has to prove innocence.
- The submission that two different courts should be trying the alleged offences was not acceptable in the peculiar facts of this case. The mother and the child both were victims of brutal acts on the part of the petitioner. It was the mother who had complained on behalf of both herself and the daughter. Both the cases were triable only by the Sessions Court and the Judge who was now to try both the cases would be the Sessions Judge.
- The allegations clearly make out an offence punishable under Section 377 of the Code. Therefore, the order under challenge was to be set aside allowing the application filed by the prosecution under Section 216 of the CrPC with a direction to the trial Court to frame the charge for the offence under Section 377.
- Hence the present petition was disposed of in favour of the respondents. Sessions Court was directed to go ahead to try the offence.
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