The Delhi High Court has delinked a clutch of pleas seeking criminalization of marital rape, a plea seeking to declare that a husband cannot be prosecuted for the offence of unnatural sex with his wife under Section 377 of the Indian Penal Code, when exception 2 to Section 375 given exception to marital rape while considering the offence of rape.
Factual Background
The petition instituted by Advocate Amit Kumar raises the question as to whether the 2013 amendment to Section 375 is inconsistent with Section 377 qua the legally wedded citizens. Post 2013 amendment, the offence of rape has been expanded to cover penetrative acts other than penile-vaginal. So when exception 2 to Section 375 was inserted excluding marital sex for the offence of rape, it is absurd to prosecute a husband for non- vaginal penetrative sexual acts under Section 377 IPC, the petitioner contended.
Case of the Petitioner
The petitioner is facing prosecution for the offence of Section 377 IPC for alleged non- consensual anal sex with his wife. When the same act is exempted under Section 375 IPC, the prosecution under Section 377 IPC does not stand, submitted petitioner. Further the petitioner contended that after amendment in Section 375, the penal law of the country is ambiguous, hence the petitioner was seeking a declaration that it is unconstitutional to prosecute the man for the “unnatural” sexual relations with his wife.
Observation of the Court
A division bench constituting of Justice Rajiv Shakndher and Justice C Hari Shankar has reserved its judgment in a group of pleas challenging the exception to Section 375 of the Code, after consistent hearings for days. Considering the present petition separately from the other petitions, the Court said that it will be hearing the matter distinctly in the next hearing. “Since the issue raised in the above-captioned petition is qualitatively different from the bunch of writ petitions in which hearing has been held before us, is to be delinked from the batch. The instant writ petition will be heard separately”, the Court ordered.
Case Details
Before: Delhi High Court
Case Title: Mr. Amit Kumar, Anand Ranjan v. Union of India
Coram: Hon’ble Mr. Justice Rajiv Shakhder and Justice Shri Harishankar
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