The Delhi high court on Wednesday said there was an anomaly and misalignment in the erstwhile Section 377 of the Indian Penal Code, which was decriminalised by the Supreme Court in 2018, and the rape law that protects a husband from prosecution for a non-consensual sexual act, including unnatural sex, with his wife.
The high court made the observation while hearing of 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, “Before decriminalisation of Section 377 (punishment for unnatural sex) of the IPC, and I am talking about heterosexual couples, wasn't there misalignment in Section 375 and section 377. It is ironic that it continued in happy marriages and no one complained”.
The judge further said, “Apart 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 consent.”
The court was referring to Section 375 of the IPC which says a man is said to commit rape if he “penetrates 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 person.”
Under 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 court's observation, amicus curiae and senior advocate Rebecca John said it no longer attracts Section 377 of the IPC. It is open to plead consent.
“When we look at an exception, we cannot let an absurdity to prevail,” 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 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 offences.
Additional solicitor general Chetan Sharma, appearing for the Centre, had told the court that an 'informed consultation process' to examine the issue of criminalising marital rape has been 'fast-tracked.'
On January 17, the court had asked the Centre to clarify its in-principle position on the issue of criminalising marital rape after the government sought time to formulate and place its 'considered stand.'
The Centre, on January 13, had told the high court that it was considering a 'constructive approach' to the issue and has sought suggestions from several stakeholders and authorities on comprehensive amendments to the criminal law.
The bench is hearing PILs filed by NGOs RIT Foundation, All India Democratic Women's 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 'not force himself upon her.'
The 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 husbands.
