Point of Law : A brutal act of sexual assault on the wife, against her consent, albeit by the husband, cannot but be termed to be a rape.

ORDER :

What falls for consideration in the subject writ petition is, “Integrity and bodily freedom of a woman, the wife, being ravaged by the husband, whether, could be absolved and protected by a law that mandates equality of its application”.

What pervades the entire petition is, “wanton lust, vicious appetite, depravity of senses, loathsome beast of passion, unbridled unleashing of carnal desire of demonish perversion”. It is these that drove the complainant-wife to register a complaint against the husband for offences punishable, inter alia, under Sections 376 and 377 of the Indian Penal Code. Cognizance being taken against the husband for the rape of his wife, is what drives the accused-husband, to this Court.

2. FACTUAL EXPOSE’ as borne out from the pleadings are as follows:

Writ Petition No.48367 OF 2018:

The petitioner-accused No.1 in Spl.C.C.No.356/2017 gets married to the complainant -Mrs.Bratati @ Pinky on 20.06.2006, at Bhuvaneshwar. The couple stayed at various parts of the nation and at the relevant point in time, he was working at Bangalore and have also a child born out of their wedlock. After few years of living together, relationship of the couple gets horribly strained. Many instances of physical and mental torture to the wife and the child led to the complainant-wife registering a complaint against the husband on 21.03.2017. The complaint becomes an FIR in Crime No.13/2017 for offences punishable under Sections 506, 498A, 323, 377 of the Indian Penal Code (‘IPC’ for short) and Section 10 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’ for short).

3. The Police, after investigation, have filed a charge sheet against the petitioner. While filing the charge sheet, the offences punishable under Sections 498A, 354, 376, 506 of the IPC and Sections 5(m) and (l) r/w Section 6 of the POCSO Act, 2012, are invoked. The case is now registered as Spl.C.C.No.356/2017. The parents of the petitioner along with the petitioner were also charge sheeted as accused Nos.2 and 3 and have been discharged pursuant to an order passed by this Court in Crl.P.No.423/2018 disposed on 03.07.2018. Therefore, the trial is now to be conducted only against the petitioner-husband of the complainant.

4. On filing of the charge sheet, the Special Court framed charges against the petitioner alone in terms of its order dated 10.08.2018, for offences punishable under Sections 376, 498A and 506 of IPC and Section 5(m) and (l) r/w Section 6 of the POCSO Act. It is at that juncture, the petitioner has knocked the doors of this Court in the subject criminal petition seeking the following prayers:

“PRAYER

Wherefore, the Petitioner (accused No.1) most humbly prays that this Hon’ble Court be pleased to issue a Writ of Certiorari or a Writ of appropriate nature or orders or direction and,

(a) Declare that Sections 29 and 30 of the POCSO Act is unconstitutional being violation of Articles 14, 19 and 21 of the Constitution.

(b) To quash the entire proceedings pending in Spl.C.C.No.356/2017 on the file of Hon’ble L Additional City Civil and Sessions and Special Court for Cases under POCSO Act, Bangalore City as per ANNEXURE – ‘A’ as an abuse of process of Law.

(c) Grant such other relief or reliefs as this Hon’ble Court deems fit to grant, in the ends of justice.”

5. Heard Sri. Hashmath Pasha, the learned senior counsel appearing for the petitioner-husband, Smt.Namitha Mahesh, learned Additional Government Advocate representing respondent No.1-State, Sri Sri.A.D.Ramananda, learned counsel appearing for the complainant-wife, Sri.Shanthi Bhushan, learned Assistant Solicitor General of India representing the Central Government. The respective counsel has made the following submissions:

Submissions of the petitioner:

6. The learned senior counsel Sri Hashmath Pasha would urge the following contentions:

(i) 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