After meandering its way through various high courts, the controversial question of whether or not to allow a married woman to file a case of rape against her husband has finally reached the Supreme Court.
The issue, already discussed in various courts like Delhi High Court and Karnataka High Court, is expected to be taken up by a three-member bench of the Supreme Court in the next few days.
Rape is a crime in India. However, husbands are protected from the charge of forced sexual intercourse under Section 375, Indian Penal Code (IPC) as long as the wife is above 18 years of age. The Supreme Court will decide whether this immunity should be maintained or not.
The apex court has clubbed the appeals against the Delhi High Court’s split verdict, Karnataka High Court’s ruling and various PILs and intervening applications on the issue.
The three questions raised by the various appeals are:
THE BACKGROUND
As of 2019, marital rape is a crime in approximately 150 countries across the world but not in India. Out of those 77 countries criminalize marital rape via codified legislations.
As mentioned, various constitutional courts have already weighed in on the subject before this.
A two judge bench of the Delhi High Court, for example, delivered a split verdict on May 2022 on the question of validity of marital rape exception.
In it, Justice Shakdher had noted that the provision of exempting marital rape under section 375 is violative of Article 14 and Article 21 of Indian Constitution and must be struck down.
“Irrespective of who the perpetrator is, forced sex mars the woman-victim physically, psychologically and emotionally. Rape, as an offence, deserves societal disapprobation in the strongest terms, notwithstanding, the fact that the rapist is in a marital relationship with the victim”, the order said.
Justice Harishankar gave a dissenting opinion and said, ‘this case raises a substantial question of law which, in my opinion, requires a decision by the Supreme Court’.
Prior to that, Karnataka High Court in March 2022 had refused to quash rape charges brought by a wife against her husband.
“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”, the order stated.
Justice M. Nagaprasanna did not accept the husband’s argument that the charges cannot be framed against him owing to the Exemption (2) under Section 375, IPC noting that the exemption is not absolute.
“A man is a man; an act is an act; rape is a rape, be it performed by a man the ‘husband’ on the woman ‘wife’” Justice M. Nagaprasanna said..
In India, two high-level panel have already recommended the designation of marital rape as an offence punishable by law.
Justice Verma Committee’s Report in 2013 and Pam Rajput Committee Report in 2015 had strongly recommended that marital rape be criminalized irrespective of the age of the wife. The reports suggested that the relationship between the perpetrator and victim should be irrelevant in evaluating consent.
For several years, courts have shown a reluctance in re-opening the question of giving legal recognition to the concept of marital rape. Any move by the Supreme Court to take up this matter will be a welcome step.
Author Trisha Shreyashi is a Delhi-based advocate and columnist