Supreme Court refuses to stay Karnataka High Court order declaring marital rape exception as not absolute, to hear husband’s appeal in July

The court also did not agree to stay the trial proceedings against the husband, who has been accused of brutal sexual violence against his wife.

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THE Supreme Court, on Tuesday, refused to stay the recent Karnataka High Court order that upheld a Sessions court order framing a rape charge against a man for allegedly raping his wife. The Supreme Court bench, comprising the Chief Justice of India N.V. Ramana and Justices J.K. Maheshwari and Hima Kohli, issued notice in the appeal and listed the matter for hearing in July.

The bench was hearing an appeal filed by the husband against the high court's March 23 order that 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.

Senior advocate, Siddhartha Dave, appearing for the husband, urged the court to stay the trial proceedings as the same is beginning from later this month. Senior advocate Indira Jaising, who was on caveat, on behalf of the victim-wife, opposed any stay of the trial proceedings. She told the bench that the trial had been stayed for over five years and that the wife had been waiting indefinitely for the trial to commence. She added that this is a case of brutal sexual violence.

The husband 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 Indian Penal Code [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 the private parts of his minor daughter, and would allegedly rape 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 husband 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 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 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.

Click here to read the order.