Karnataka govt supports in SC trial of man in marital rape case

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

Published: 22nd December 2022 07:20 PM  |   Last Updated: 22nd December 2022 07:20 PM   |  A+A-

Supreme Court.

A view of the Supreme Court in New Delhi. (File Photo)

Express News Service

NEW DELHI: The Karnataka government has supported in the Supreme Court the trial of a man in a marital rape case saying the state high court has considered all related questions of law, amid a raging debate on whether to do away with a section in law that decriminalises rape by a husband.

The ruling BJP government led by Basavaraj Bommai has told the Supreme Court that HC was correct in its ruling of refusing to quash FIR registered against the husband and ordering trial.

Questioning the maintainability of the petition, the state has said that husband’s plea is not maintainable either in law or on facts and requires to be dismissed in lime lite. 

“It is further submitted that the contents in the complaint as well as charges in the charge sheet is a matter of trial. In the circumstances, the court has rightly dismissed the writ exercising its jurisdiction under section 482 CrPC,” the state had said. 

Exception 2 of Section 375 (rape) of the IPC makes husbands immune to the marital rape charge provided the wife is not a minor. Interestingly, Centre has refrained from taking a clear stand on criminalising marital rape in the pleas that were filed before Delhi HC challenging the exception. 

State’s response has been filed in the plea which was preferred by the husband against HC’s March 23 ruling. The husband had approached HC seeking to quash the proceedings pending before the lower court for allegedly committing rape and unnatural sex with his wife and sexually harassing their daughter.

The proceedings were culminated from the FIR which was filed by the wife under section 506 (punishment for criminal intimidation), 498A (Husband or relative of husband of a woman subjecting her to cruelty), 323 (punishment for voluntary causing hurt), 377 (unnatural offence) of the Indian Penal Code and Section 10 of the Protection of Children from Sexual Offences Act, 2012 alleging that the husband had conducted brutal sexual act against her and also against her daughter.

The police after investigation had filed chargesheet against the husband for offences under section 498A (Husband or relative of husband of a woman subjecting her to cruelty), 354 (Assault or criminal force to woman with intent to outrage her modesty) , 376 (Punishment for rape), 506 (punishment for criminal intimidation) of the IPC and Sections 5(m) and (l) r/w Section 6 of the POCSO Act, 2012. 

A bench of Justice M Nagaprasanna while rejecting husband’s plea seeking to quash the FIR had said that the charges framed against the husband for allegedly raping his wife did not warrant any interference. 

“The exemption of the husband on committal of such assault/rape, in the peculiar facts and circumstances of this case, cannot be absolute, as no exemption in law can be so absolute that it becomes a license for commission of crime against society. Though the four corners of marriage would not mean society, it is for the legislature to delve upon the issue and consider tinkering of the exemption. This Court is not pronouncing upon whether marital rape should be recognized as an offence or the exception be taken away by the legislature. It is for the legislature, on an analysis of manifold circumstances and ramifications to consider the aforesaid issue. This Court is concerned only with the charge of rape being framed upon the husband alleging rape on his wife,” the HC had said. 

The Supreme Court bench of then CJI NV Ramana, Justices Krishna Murari and Hima Kohli on July 19 had stayed tHC’s ruling and proceedings in Sessions court based on the FIR lodged by the wife against her husband.

State in the affidavit has also referred to the recommendations made by Justice JS Verma Committee that was set up for proposing amendments in criminal law. The committee in its 644 page report had recommended for 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". 

Interestingly, the Supreme Court is set to hear pleas challenging the Delhi HC’s split verdict on the issue of criminalisation of marital rape in February 2023. A bench led by Justice Ajay Rastogi has sought centre’s response in pleas challenging Delhi HC’s May 11 order.

The order had come in a batch of petitions challenging the exception which exempts prosecution of husbands for non-consensual sexual intercourse with their wives. Under the exception given in section 375 of the IPC, sexual intercourse or sexual acts by a man with his wife, the wife not being minor, is not rape. Justice Rajiv Shakdher had favoured striking down the exemption while Justice C Hari Shankar had refused to declare it unconstitutional.

However, saying that substantial questions of law are involved, the bench had granted a certificate to appeal to SC. 


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