Supreme Court to examine if a man can be tried for raping his wife
A division bench of the high court is set to deliver its verdict on Wednesday 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.
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 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 Karnataka high court refused to drop the rape charge levelled against the man by his wife under Section 376 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 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 in a brief order.
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 concerned.
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 told the counsel from both sides that 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 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 spate 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.
In 2015, a bunch of PILs filed by NGO RIT Foundation, All India Democratic Women’s Association, and two individuals, urged the Delhi high court to strike down the exception in the Indian rape laws on the grounds that it discriminated against married women who were sexually assaulted by their husbands.
The Union government, which was put to a notice, filed its reply in the case before the Delhi high court 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 high court commenced final hearing of the case and started hearing it on a day-to-day basis, 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 as 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, reserved its judgment in the case, noting that “there is no terminal date for ending the consultations”.
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 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 Karnataka high court refused to drop the rape charge levelled against the man by his wife under Section 376 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 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 in a brief order.
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 concerned.
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 told the counsel from both sides that 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 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 spate 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.
In 2015, a bunch of PILs filed by NGO RIT Foundation, All India Democratic Women’s Association, and two individuals, urged the Delhi high court to strike down the exception in the Indian rape laws on the grounds that it discriminated against married women who were sexually assaulted by their husbands.
The Union government, which was put to a notice, filed its reply in the case before the Delhi high court 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 high court commenced final hearing of the case and started hearing it on a day-to-day basis, 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 as 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, reserved its judgment in the case, noting that “there is no terminal date for ending the consultations”.