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In Supreme Court, BJP-ruled Karnataka supports criminalising marital rape

Dec 22, 2022 04:58 AM IST

The BJP government’s stand before the top court is not in line with the position taken by the party's government at the Centre on the issue -- on the floor of the House and before another constitutional court.

New Delhi: The Bharatiya Janata Party-ruled Karnataka government has supported in the Supreme Court the criminal prosecution of a man under the marital rape charge, even as the Union government is unsure about the criminalisation of the act and has cited consultation with all the states and Union territories as a prerequisite for any change in the law.

The affidavit was filed in response to a notice issued by the apex court in May to the state on an appeal filed by the man against the Karnataka high court judgment. (PTI)
The affidavit was filed in response to a notice issued by the apex court in May to the state on an appeal filed by the man against the Karnataka high court judgment. (PTI)

In an affidavit filed before the top court, the Basavaraj Bommai-government has claimed that the Indian Penal Code (IPC) permits the prosecution of a man for raping his wife and therefore, a husband’s trial under Section 375 of IPC is valid.

Also Read | Marital rape: The State must protect women

According to the state, the Karnataka high court was correct in its March judgment in ordering the trial of a man for allegedly raping his wife.

It added that whether the charge finally stands or not is a matter of trial and that the accused in the case cannot be exonerated at this stage despite the immunity against marital rape provided to husbands under IPC. 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 petition (before the Supreme Court) is not maintainable either in law or on facts and the same requires to be dismissed in limine. It is respectfully submitted that the Hon’ble High Court of Karnataka has considered all the questions of law involved in the present petition and it does not require any interference by this Hon’ble court,” said the affidavit filed last month.

The affidavit was filed in response to a notice issued by the apex court in May to the state on an appeal filed by the man against the Karnataka high court judgment. On March 23, the high court refused to drop the rape charge levelled against the man by his wife under Section 375 of the IPC, holding that a 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 high court held while rejecting the man’s contention that a husband cannot be prosecuted under the marital rape charge under Exception 2 of Section 375.

The case came up before a bench of justices Surya Kant and JK Maheshwari on December 15. Senior counsel Siddharth Dave and advocate Jaikriti S Jadeja appeared for the man. Senior advocate Indira Jaising represented the wife in the matter. However, no effective order was passed on that day, and the case is expected to be listed next in February. There is currently a stay on the trial of the man under the rape charge.

The Karnataka government’s stand before the top court is not in line with the position taken by the BJP government at the Centre on the issue -- on the floor of the House and before another constitutional court.

Also Read | Judge’s appointment coincides with marital rape case reaching Supreme Court

The protection of women and children is a priority but condemning every marriage as violent and every man a rapist is not advisable, Union minister of women and child development Smriti Irani said in February this year, in response to a question on marital rape raised in the Parliament.

BJP leader Sushil Modi, during the debate, said that making marital rape a crime will end the institution of marriage. At that time, Irani denied any further discussion on the matter, saying the issue is sub-judice before the Delhi high court.

Before the Delhi high court where a bunch of petitions challenged the immunity given to husbands under the law, the Union government filed its first affidavit in 2017, stating that it must be ensured that marital rape does not become a phenomenon that destabilises the institution of marriage and “an easy tool for harassing the husbands”.

The 2017 affidavit added: “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.”

But in 2022, when the Delhi high court commenced final hearing of the case, the central government resiled from its 2017 affidavit. Solicitor general Tushar Mehta, appearing for the Centre, submitted in February 22 that the earlier affidavit of 2017, opposing the pleas to criminalise marital rape, should not be treated as a final version because the decision is yet to be taken. The new affidavit urged the high court to suspend the proceedings till the Centre’s consultative process with states and other stakeholders got over.

On February 7, the high court gave the government till February 21 to make its position clear, seeking a “yes-or-no” answer. That wasn’t to be. The Union government’s subsequent affidavit sought more time for consultations and asked that the hearing be deferred. With the Centre sticking to its position, the high court, on February 21, refused to defer the proceedings, and compared the Union government’s stance to that of “Trishanku” -- a king in Indian epics who sought to have his own heaven created, only to be suspended in limbo halfway.

Later, on May 11, the Delhi high court delivered its verdict on the criminalisation of marital rape but failed to decide the issue. The two judges on the high court bench delivered a split verdict, with one terming the clause protecting husbands from prosecution for non-consensual sex with their wives as “morally repugnant” and the other saying it did not violate any law and could continue to exist. The division bench left it to the apex court to take the final call.

In September, the petitions against the Delhi high court’s split verdict came up before the top court, which assigned the next hearing after five months after observing that the legal position on marital rape not being a crime against husband has existed for a very long time, and thus, there cannot be an urgency to consider the matter immediately.

Also Read | Legal position existed for so long: Supreme Court notice to govt on marital rape

With two sets of petitions pending, the legal debate over the criminalisation of marital rape before the Supreme Court is slated to be revived after five years.

Interestingly, while delivering a judgment in a case related to the medical termination of pregnancy, the Supreme Court said in September that the pregnancy of a married woman due to forcible sex by her husband can be treated as rape under the Medical Termination of Pregnancy Act, in what was the first legal recognition of “marital rape” under an Indian statute.

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 the 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, which was set up to propose amendments in criminal laws in the wake of the gang rape of a paramedical student in December 2012, made a contrary recommendation. The committee received around 80,000 suggestions and finalised its 644-page report in 2013, proposing that “the exception for marital rape be removed” and the law must “specify that a marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation”.

The committee recommended the criminalisation of marital rape since the state of being married does not generate automatic consent to sexual acts. While a raft of other recommendations made by this panel were accepted and the criminal law was amended in 2013, the exhortation on marital rape was not heeded to by the government.

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