SC to examine if husbands enjoy immunity from prosecution
Constitutional validity of a clause of Section 375 (rape) of IPC is under challenge
Does a husband enjoy immunity from prosecution for the offence of rape if he forces his wife, who is not a minor, to have sex?
A three-judge bench of the Supreme Court will examine this after constitution benches conclude hearing some listed pleas, said Chief Justice D Y Chandrachud when senior lawyer Indira Jaising mentioned the matter for urgent listing.
The constitutional validity of an exception clause of Section 375 (rape) of the Indian Penal Code (IPC) is under challenge as it exempts a husband from being prosecuted for rape for having non-consensual sexual intercourse with the spouse if she happens to be an adult.
“We have to resolve the matters concerning marital rape,” said the bench, which also comprised justices P S Narasimha and Manoj Misra.
“My case deals with the child sexual abuse,” Jaising said told the court. The CJI said these matters are to be heard by a three-judge bench and will be listed for hearing after the five-judge constitution benches conclude hearing some listed cases. A five-judge constitution bench headed by the CJI is currently hearing petitions related to regimes on grant of driving licence for different kind of vehicles under the Motor Vehicle Act.
The petitions on abrogation of Article 370 of the Constitution, which had provided special status to the erstwhile Jammu and Kashmir state, are also scheduled for hearing.
The top court had on January 16 sought the Centre’s response to the petitions pertaining to criminalisation of marital rape and the IPC provision which provides protection to a husband against prosecution for forcible sexual intercourse if the wife is an adult.
The Centre, represented by Solicitor General Tushar Mehta, had said the issue has legal as well as social implications, and the government would like to file its response to the petitions.
One of pleas has been filed in relation to the Delhi High Court’s split verdict of May 11, 2022 on the issue. This appeal has been filed by a woman, one of the petitioners before the Delhi High Court.
While delivering a split judgement, HC judges Justice Rajiv Shakdher and Justice C Hari Shankar had concurred on granting the petitioners a certificate of leave to appeal in the Supreme Court as the matter involved substantial questions of law.
