THE Supreme Court is slated to hear on Tuesday an appeal filed against the Karnataka High Court's recent order upholding the decision of a Sessions court to frame a rape charge against a person for committing the offence against his wife. Exception 2 to Section 375 (rape) of the Indian Penal Code [IPC] exempts the husband from the purview of the offence of rape.
A three-judge division bench comprising Chief Justice of India N.V. Ramana and Justices J.K. Maheshwari and Hima Kohli will be hearing the matter. The Supreme Court's hearing is significant because the Delhi High Court had reserved its verdict on February 21, on the issue of the constitutionality of the immunity provided to the husband from the rape law, and its verdict is expected to be delivered any time now.
Justice Nagaprasanna of the Karnataka High Court, on March 23, held that the exemption of the husband on committing rape cannot be absolute, as no exemption in law can be so absolute that it becomes a license for the commission of a crime against society.
The accused husband has now moved the Supreme Court to challenge the high court order, calling it illegal and in teeth of the second exception 2 to section 375, which the accused has described as an absolute exception. He is facing prosecution under Sections 498A (husband or relative of husband of a woman subjecting her to cruelty), 376 (punishment for rape), 354 (assault of criminal force to woman with intent to outrage her modesty) and 506 (punishment for criminal intimidation) of the IPC, and Section 5(m) and (l) (aggravated penetrative sexual assault) of the Protection of Children from Sexual Offences [POCSO] Act. The charges under POCSO Act were levelled because the appellant allegedly used to touch private parts of his minor daughter, and would also commit rape with his wife in front of his daughter.
The high court was of the view that if the allegation of rape was removed from the block of offences alleged, it would, in the peculiar facts of this case, be doing tremendous injustice to the complainant-wife, and would amount to putting a premium on the carnal desires of the petitioner.
In his appeal, the accused has contended that criminal laws must be strictly construed. He has argued that in the absence of constitutional challenge to Exception 2 to Section 375, the high court could not have upheld the charges of rape as framed by the lower court. Besides, the accused husband has also challenged the direction given by the high court to add a charge against him for the offence under Section 377 (unnatural offences) of the IPC. He has contended that his prosecution under section 377 is excessive, disproportionate and arbitrary because, after the amendment of section 375 of the IPC by way of the Criminal Law Amendment of 2013, the offence also includes within its definition non-penal penetration as amounting to rape. He has, thus, contended that the immunity under section 375 cannot be taken away by section 377.
In December 2021, the Gujarat High Court agreed to examine the validity of the so-called marital rape exception. While issuing notice to the Union Government, a division bench of the high court said, "It is high time that a writ court undertakes the exercise of considering, whether the exception-2 to Section 375 of the IPC could be termed as manifestly arbitrary and makes a woman's fundamental right to sexual autonomy subject to the whims of her husband".
A Kerala High Court division bench last year held that "marital rape" is a good ground to claim divorce even though penal law does not recognise it.
"Merely for the reason that the law does not recognise marital rape under penal law, it does not inhibit the court from recognizing the same as a form of cruelty to grant divorce. We, therefore, are of the view that marital rape is a good ground to claim divorce", said a bench of Justices A. Muhamed Mustaque and Dr. Kauser Edappagath.