The Bharatiya Janata Party-led Karnataka government has favoured the dismissal of a petition filed by a husband challenging the Karnataka High Court’s judgment earlier this year that upheld a Sessions court order framing a rape charge against the man for allegedly raping his wife. An affidavit to this effect has been filed by the state government at the Supreme Court.
“The High Court of Karnataka has considered all the questions of law involved in the present petition and it does not require any interference by this court”, the government’s affidavit in the Supreme Court read.
It stated that “from the bare reading of the amended Section of 375 and the complaint, it clearly invokes the amended provision 375. Hence the said point is held in favour of the prosecution and against the petitioner”.
The affidavit further stated that the charges framed against the husband for an alleged offence punishable under section 375 of the Indian Penal Code (‘IPC’) for the alleged rape of his wife in the peculiar facts of this case, do not warrant any interference and it is a matter of trial.
The stand of the Karnataka government is in contrast with the one taken before the Delhi High Court by the Union Government, which refused to disclose its stand before the court. Solicitor General of India, Tushar Mehta, appearing for the union government, had submitted that it would not be possible for the government to take a stand till the views from all stakeholders, including the states and union territories, were received.
The husband in the Karnataka-based matter is facing prosecution under Sections 498A (husband or relative of husband of a woman subjecting her to cruelty), 376 (punishment for rape), 354 (assault of criminal force to woman with intent to outrage her modesty) and 506 (punishment for criminal intimidation) of the IPC, and Section 5(m) and (l) (aggravated penetrative sexual assault) of the Protection of Children from Sexual Offences (‘POCSO’) Act. The charges under the POCSO Act were levelled because the appellant allegedly used to touch the private parts of his minor daughter, and would allegedly rape his wife in front of his daughter.
The high court was of the view that if the allegation of rape was removed from the block of offences alleged, it would, in the peculiar facts of this case, be doing tremendous injustice to the complainant-wife, and would amount to putting a premium on the carnal desires of the petitioner.
In his appeal before the Supreme Court, the husband contended that criminal laws must be strictly construed. He has argued that in the absence of a constitutional challenge to Exception 2 to section 375, the high court could not have upheld the charges of rape as framed by the lower court. Besides, the husband has also challenged the direction given by the high court to add a charge against him for the offence under Section 377 (unnatural offences) of the IPC. He has contended that his prosecution under section 377 is excessive, disproportionate and arbitrary because, after the amendment of section 375 by way of the Criminal Law Amendment of 2013, the offence also includes within its definition non-penal penetration as amounting to rape. He has, thus, contended that the immunity under section 375 cannot be taken away by section 377.
On May 10, a Supreme Court bench led by the then Chief Justice of India (‘CJI’) N.V. Ramana issued notice to the wife and the state government on the petition filed by the husband. On July 19, the bench stayed the trial proceedings until further orders. Senior advocate Indira Jaising is representing the wife, while senior advocate Siddhartha Dave is arguing for the husband.
Earlier this month, a fresh petition challenging the marital rape exception was mentioned before the CJI Dr. D.Y. Chandrachud by senior advocate C.U. Singh. He was referring to the petition filed by Ruth Manorama, a Dalit social activist from Bangalore, who fights for Dalit women’s rights. Singh also referred to the split decision of the Delhi High Court on marital rape, and the one arising from the Karnataka high court. CJI Dr. Chandrachud said he would list all the similar matters, including the one arising from the Delhi high court, in the second week of January next year.