The Supreme Court on Tuesday put a stay on the Karnataka High Court judgement that allowed a man to be tried for raping his wife, Live Law reported.
The woman had alleged that her husband would force himself on her regularly, make her perform oral and anal sex, and imitate pornographic films. He raped her while she was pregnant, and sexually assaulted their daughter, the woman alleged. The husband allegedly sexually assaulted the woman in front of their daughter and threatened to beat up the child.
In March, Justice M Nagaprasanna of Karnataka High Court had observed that the institution of marriage cannot be a “special male privilege or license for unleashing a brutal beast”. Nagaprasanna refused to drop charges of rape against the man.
The accused person then moved the Supreme Court seeking a stay order on the High Court proceedings.
In its May 10 order, a Supreme Court bench of Chief Justice NV Ramana and Justices JK Maheshwari and Hima Kohli refused to stay the High Court trial. But, the bench issued a notice on the matter and posted it for hearing in the third week of July.
At Tuesday’s hearing, the woman’s counsel sought four weeks to file a counter-affidavit in the case, reported Live Law. But the lawyer representing the husband opposed the request to adjourn the matter.
The Supreme Court then put a stay on the High Court judgement. It also stayed the trial proceedings against the man in a sessions court based on a first information report filed by his wife.
The matter will be heard again in the Supreme Court next week.
Karnataka High Court verdict
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.”
“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
On May 11, Justices C Hari Shankar and Rajiv Shakdher had passed a split verdict on a batch of petitions seeking to do away with Exception 2 of the rape law.
Shakdher had held that the exception was unconstitutional.
“The impugned provisions in so far as they concern a husband having intercourse with his wife without consent are violative of Article 14 [right to equality] and are struck down,” he wrote in his judgement.
However, Shankar said that he disagreed with Shakdher’s decision to strike down the immunity to husbands. He upheld the validity of sections 376B (sexual intercourse by husband upon his wife during separation is punishable) and 198B (no court shall take cognizance of an offence punishable where the persons are in a marital relationship).
A petition has been filed in the Supreme Court challenging the Delhi High Court’s split verdict.
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