Updated: Mar 26, 2022
Hon'ble The Chief Justice
Supreme Court of India
We are a registered NGO as ‘Daaman Welfare Society’, working for Men’s Rights, as part of Save Indian Family Movement, which works to reach men with a different, better vision of themselves with rights and health, and fight the hateful ideologies that affects both men and women equally! We work for the welfare of men in the domain of male suicides, misuse of gender-based laws, and also running a Men’s Helpline - 8882498498 - for men in distress! We are writing this letter against the order, dated 23.03.2022, of a single bench of Hon'ble High Court of Karnataka, in Mr Hrishikesh Sahoo Vs State of Karnataka and Ors., W.P. No. 48367/2018 C/W 12976/2018, 10001/2018, 50089/2018 upholding order, dated 10.08.2018, of Special Court in Spl. C.C.No.356/2017, to frame charge under section 376 IPC against husband/accused through judicial interpretation. Although the Hon'ble High Court's judgement addressed a number of other concerns, the objective of this letter is to focus on the element of permitting the husband/accused to be charged under section 376 IPC. And not only is the order clearly illegal in this regard, but it also violates the foundations of criminal law.
The Hon'ble HC, being a constitutional court, is supposed to uphold the existing laws in the country and not be influenced by emotions. But acting contrary, the Hon'ble Judge preferred to ignore the law of the land.
To summarise, Section 375 Exception 2 assures that sexual violence/assault between spouses is not considered rape. For a variety of reasons, lawmakers/legislators made the conscious decision to maintain Exception 2. We remain steadfast in our belief that Exception 2 does not grant a partner (only a husband, as our law does not even accept that wife too can sexually assault a husband) the right to sexually attack his wife. Any order or judgement by any court at this time enabling a husband to be prosecuted under IPC 376 is essentially trespassing into the exclusive realm of legislative.
No court should get into the shoes of the legislature and create a new offence even Indirectly, and this is what precisely Hon'ble High Court of Karnataka did through its order - created a new offence against the husband. The order in question is in dear violation of Article 20(1) of the constitution of India apart from being against Article 14 & 21 which guarantee equal protection by law and right to life, liberty & dignity respectively. Further, it is also not the case that an aggrieved wife is remediless, in fact, she has been provided with a complete framework of laws to prosecute husband against sexual violence/assault.
The more one reads the Hon'ble High Court of Karnataka's ruling, the more it reveals passion rather than a path to justice. Despite, there being no dearth of legal minds during the hearing of the case to help the Hon'ble High Court of Karnataka for example Smt. Namitha Mahesh learned Additional Government Advocate representing respondent No.1-State, Sri. Shanthi Bhushan learned Assistant Solicitor General of India representing the Central Government, and Sr. Counsel of wife/respondent to the case, it is unfortunate that no one except Sr. Counsel of petitioner/husband argued against framing of charge against husband/accused under section IPC 376 which is blatant ignorance of the law of the land. It is not even necessary to discuss the merits of judicial interpretation because no statute empowers the Hon'ble High Court to invent new offences. It is entrusted with the task of dismissing any order or judgement that is contrary to the law of the land.
It is therefore humbly prayed that the Hon'ble Chief Justice of India take Suo Moto cognizance of the patently illegal order, dated 23/03/2022, passed by the Hon'ble Karnataka High Court in relation to the framing of charge U/s 376 IPC against the husband/accused and set it aside to prevent the judiciary to enter into the boundaries of the legislative domain in the best interest of justice to every citizen of this country.