The Delhi high court on Wednesday sought the response of the ministry of law and justice on a plea over an “inconsistency” in the amended rape law, which protects a husband from prosecution for the offence of unnatural sex with his wife.
A bench of Chief Justice G Rohini and Justice Sangita Dhingra Sehgal also sought the response of the Delhi government on the plea that 2013 amendment in Section 375 (rape) of the Indian Penal Code was “incorrect” and “inconsistent” with Section 377 (unnatural sex).
The petition has raised a legal issue over the “uncertainty” in the two penal provisions as Section 375 has an exception that “sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape”.
The petition, filed through advocates Amit Kumar and Anand Ranjan, claimed the existing penal law was not certain as the act of sexual offence punishable under section 377 of IPC was non-penal under section 375, if committed by the husband.
“The legal issue raised by the petitioner deserves to be settled/determined by this court in the interest of public at large as the said uncertain/unsettled position of law has been infringing the respective rights of the husband and wife,” the plea said.
It claimed the alleged act of a husband being penal under one provision and non-penal in the other makes the law inconsistent.
The bench has sought the response of the ministry and the Delhi government by August 29, the next date of hearing.
The petitioner, who is facing trial for unnatural sex on his wife’s complaint, said his prosecution under Section 377 of the IPC was contrary to the existing law, as his purported act was protected under Section 375 and the unsettled position of law infringes his rights.
In 2013, the man had married the 20-year-old girl, who later lodged an FIR against him for rape and unnatural sex. The trial court had discharged him for the alleged offence of rape but he was put on trial on the charge of unnatural sex with his wife.
The man was granted bail by the high court in January last year.