The Supreme Court on Tuesday refused to stay a Karnataka High Court order that allowed the trial of a man for allegedly raping his wife, Bar and Bench reported.
On March 23, the Karnataka High Court had held that “a brutal act of sexual assault on the wife, against her consent, albeit by the husband, cannot but be termed to be a rape”.
Senior Advocate Siddhartha Dave, appearing for the man, requested the Supreme Court to stay the High Court proceedings. Appearing for the wife, Senior Advocate Indira Jaising opposed the plea, saying that the trial had already been stayed for over five years, Live Law reported.
The bench of Chief Justice NV Ramana and Justices JK Maheshwari and Hima Kohli did not stay the trial, but issued a notice on the matter.
“Now after notice, you can tell them we are hearing this case,” Ramana said. The Supreme Court will hear the matter in the third week of July.
Karnataka High Court verdict
The woman had alleged in the complaint that her husband would force himself on her regularly, make her perform oral and anal sex, and imitate pornographic films. He raped her even during her pregnancy, and sexually assaulted their daughter after bringing her home early from school, the woman alleged.
The husband sexually assaulted the woman in front of their daughter and threatened to beat up the child.
A single-judge bench of Justice M Nagaprasanna had said that the exception 2 in the rape law under section 375 of the Indian Penal code had been enacted during the Victorian era, in 1860, when women were “denied their basic rights and liberties, and were treated as chattels”.
Exception 2 in the rape law under Section 375 of the Indian Penal Code states that forcible sexual intercourse by a man with his wife is not rape, unless the woman is below 15 years of age.
“Post Republic, India is governed by the Constitution,” the court had said. “The Constitution treats woman equal to man and considers marriage as an association of equals. The Constitution does not in any sense depict the woman to be subordinate to a man.”
The judge had observed that the institution of marriage cannot be a “special male privilege or license for unleashing a brutal beast”.
“If it is punishable to a man, it should be punishable to a man albeit, the man being a husband,” the judge had said. However, the court had noted that it will not pronounce whether marital rape should be recognised as an offence or not.
Delhi High Court on criminalising marital rape
The Delhi High Court had on February 21 reserved its verdict on the petitions seeking to criminalise marital rape. The court will pass the order on Wednesday.
A bench of Justices Rajiv Shakdher and C Hari Shankar heard a batch of petitions to remove Exception 2 in the rape law under Section 375 of the Indian Penal Code.
The Centre had sought to defer the hearing through an affidavit filed on February 3. In its affidavit, the Union Ministry of Home Affairs had said that the questions involved in the case have “far-reaching socio-legal implications”.
The ministry said that the matter needed a comprehensive approach rather than just a strictly legal view. This reflected a change in the Centre’s stance from an earlier affidavit filed in the case.
In an affidavit filed in 2017, the government had said that criminalising marital rape would destabilise the institution of marriage. It had also said that the criminalisation would become an “easy tool” for harassing husbands.