SC to decide if a man can be tried for raping his wife

Senior advocate Indira Jaisingh appeared on behalf of the wife and urged the court not to interfere with the order of the High Court.

New Delhi, May 11: The Supreme Court has agreed to examine if a man can be tried for raping his wife despite the immunity provided to the husbands under the provisions of the Indian Penal Code (IPC)
A Division Bench of the Delhi High Court is set to deliver its verdict today on the validity of Exception 2 of Sections 375 (rape) in the IPC that makes a husband immune to marital rape charges provided the minor is not a minor.

The Supreme Court is hearing an appeal against an order of the Karnataka High Court which had refused to drop the rape charge levelled against the man by his wife under Section 376 of the IPC. The High Court had held that marriage cannot confer any 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 HC ruled.

The court also rejected the contention by the man that Exception 2 of the Section 375 (rape) of the IPC makes a husband immune to marital rape charge provided that the wife is not a minor.

A Supreme Court Bench headed by Chief Justice of India (CJI) N V Ramanna has sought the response of the Centre. We will have to hear this. Issue not. List this matter in the third week of July, the Bench said.

Senior advocate Indira Jaisingh appeared on behalf of the wife and urged the court not to interfere with the order of the High Court. She pointed out that the trial in the case has been hanging for the last five years and the minor daughter was also sexually abused by the husband.

Appearing for the husband, senior counsel Siddharth Dave and advocate Jaikriti S Jadeja urged the Bench to stay the proceedings at the trial court. The trial is slated to commence from May 29. They informed the court that the chargers have already been framed against the husband and the trial will commence now.

The court told the counsel from both sides that no interim order would be passed. "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.

In 2017, the Supreme Court had heard a similar matter and said that Exception 2 of Section 375 protects the husband from prosecution under the rape charge if the wife was not below 15 years. The court held that the wife must not be below 18 for the immunity to operate.

The court however 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," the court had said in 2017.

The Law Commission of India in its 172nd report on Review of Rape Laws had said in March 2000 that it would not recommend the deletion of the exception clause in Section 375. It said that this may amount to excessive interference with the marital relationship.

In an affidavit filed before the Delhi High Court in 2017, the Centre had said, "what may appear to be marital rape to an individual wife, it may not appear so to others... if all sexual acts by a man with his own wife will qualify to be marital rape, then the judgment as to whether it is a marital rape or not will singularly rest with the wife. The question is what evidence the courts will rely upon in such circumstances as there can be no lasting evidence in case of sexual acts between a man and his own wife."