Marital rape: Misalignment in IPC sections 377 and 375, says Delhi HC

The Delhi High Court Wednesday said there was an anomaly and misalignment in the erstwhile Section 377 of the IPC which was decriminalised by the Supreme Court in 2018 and the rape law that protects a husband from prosecution for a nonconsensual sexual act including unnatural sex with his wifeThe high court made the observation while hearing a batch of pleas seeking to criminalise marital rape A bench of Justices Rajiv Shakdher and C Hari Shankar will continue to hear the submissions on Thursday During the hearing Justice Shakdher said ldquoBefore decriminalisation of Section 377 punishment for unnatural sex of the IPC and I am talking about heterosexual couples wasnt there misalignment in section 375 and section 377It is ironic that it continued in happy marriages and no one complainedrdquo The judge further said ldquoApart from the fact that anal sex is part of sexual act and therefore if there is consent that is not rape But in section 377 prior to the Supreme Court judgement that anomaly remained Could he then say that there was consentrdquoThe court was referring to Section 375 of the IPC which says a man is said to commit rape if he ldquopenetrates his penis to any extent into the vagina mouth urethra or anus of a woman or makes her to do so with him or any other person or inserts to any extent any object or a part of the body not being the penis into the vagina the urethra or anus of a woman or makes her to do so with him or any other personrdquoUnder the exception given in Section 375 of the IPC sexual intercourse or sexual acts by a man with his own wife the wife not being under fifteen years of age is not rape On the courts observation amicus curiae and senior advocate Rebecca John said it no longer attracts section 377 of the IPCIt is open to plead consent ldquoWhen we look at an exception we cannot let an absurdity to prevailrdquo she said Another amicus curiae and senior advocate Rajshekhar Rao had earlier told the court that apprehensions of misuse and protection of the institution of marriage cannot be a ground to sustain the marital rape exception in the Indian Penal Code IPC He had said that there was always a possibility of misuse of criminal offences and had the object of the legislation been to protect the institution of marriage wives would not have been given the power to prosecute husbands for any offence including lessor sexual offencesAdditional Solicitor General Chetan Sharma appearing for the Centre had told the court that an ldquoinformed consultation processrdquo to examine the issue of criminalising marital rape has been ldquofasttrackedrdquo On January 17 the court had asked the Centre to clarify its inprinciple position on the issue of criminalising marital rape after the government sought time to formulate and place its ldquoconsidered standrdquoThe Centre on January 13 had told the high court that it was considering a ldquoconstructive approachrdquo to the issue and has sought suggestions from several stakeholders and authorities on comprehensive amendments to the criminal lawThe bench is hearing PILs filed by NGOs RIT Foundation All India Democratic Womens Association a man and a woman seeking striking down of the exception granted to husbands under the Indian rape law Rao had earlier submitted that a married woman could not be denied the right to prosecute her husband if she believed that she was raped and in case of denial of a conjugal relationship the remedy before the spouse is to file a plea for restitution and ldquonot force himself upon herrdquoThe central government in its earlier affidavit filed in the case has said that marital rape cannot be made a criminal offence as it could become a phenomenon that may destabilise the institution of marriage and an easy tool for harassing the husbands The Delhi government has told the court that marital rape was already covered as a crime of cruelty under the IPC The petitioners have challenged the Constitutionality of the marital rape exception under section 375 IPC rape on the ground that it discriminated against married women who are sexually assaulted by their husbandsThis story has been sourced from a third party syndicated feed agencies Midday accepts no responsibility or liability for its dependability trustworthiness reliability and data of the text Midday managementmiddaycom reserves the sole right to alter delete or remove without notice the content in its absolute discretion for any reason whatsoever