Top court to examine if a man can be tried for raping his wife
NEW DELHI: The Supreme Court on Tuesday agreed to examine if a man can be tried for raping his wife despite the immunity provided to husbands under the Indian Penal Code (IPC) — a development that came a day before a ruling is expected from the Delhi high court on a clutch of petitions seeking the criminalisation of marital rape.
A division bench of the high court is set to deliver its verdict on Wednesday on the validity of Exception 2 of Section 375 (rape) in the IPC that makes husbands immune to the marital rape charge provided the wife is not a minor. Meanwhile, the issue of rape by a husband reached the Supreme Court in an appeal from a ruling of the Karnataka high court. A bench, headed by Chief Justice of India (CJI) NV Ramana, sought responses from the Centre, the state of Karnataka, and the complainant’s wife in the appeal filed by a man against the Karnataka high court judgment in March.
On March 23, the high court refused to drop rape charge levelled against the man by his wife under Section 376 of the IPC, holding that a marriage cannot confer special male privilege “for unleashing of a brutal beast”.
“If it is punishable to a man, it should be punishable to a man albeit, the man being a husband... no exemption in law can be so absolute that it becomes a license for commission of crime against society,” the high court held while rejecting the man’s contention that Exception 2 of Section 375 (rape) of the IPC makes husbands immune to the marital rape charge provided the wife is not a minor. The Supreme Court bench, which also comprised justices JK Maheshwari and Hima Kohli, admitted the man’s appeal against the high court order, and issued notices to the Centre, state, and the wife. “We will have to hear this. Issue notice. List this matter in the third week of July,” said the bench.
Senior advocate Indira Jaising appeared on behalf of the wife, requesting the court not to interfere with the high court order. She pointed out that the trial in the case has been hanging fire for last five years, and that the minor daughter was also sexually abused by the accused.
Representing the husband, senior counsel Siddharth Dave and advocate Jaikriti S Jadeja, urged the bench to stay the trial proceedings, which the lawyers said are slated to commence from May 29. They informed the bench that the charges have already been framed against the husband and the trial will commence now.But the bench said it would not pass any interim direction. “We will have to hear this. You bring the pendency of this case before us to the trial court if you so desire,” the bench told Dave.The development assumes significance for it may rekindle the legal debate over the criminalisation of marital rape before the Supreme Court after a gap of five years. In 2017, the top court interfered with Exception 2 of Section 375, but only to the extent that it protected husbands from prosecution under the rape charge if the wife was not below 15 years. The Supreme Court read down the exception clause to hold that a wife must not be below 18 for immunity to operate. At the same time, it clarified that no opinion was being rendered on the issue of marital rape. “We make it clear that we have refrained from making any observation about the marital rape of a woman, who is 18 years of age and above, since that issue is not before us at all. Therefore, we should not be understood to advert to that issue even collaterally,” said the 2017 judgment.
The 172nd report of the Law Commission of India on “Review of Rape Laws” in March 2000 said it would not recommend deletion of the exception clause in Section 375 “since that may amount to excessive interference with the marital relationship”. However, the justice JS Verma committee, set up in the wake of the gang rape of a paramedical student in 2012, made a contrary recommendation.