Delhi High Court says misalignment in IPC sections 377 and 375 regarding Marital rape

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The Delhi High Court today heard so many petitions challenging the second exception to Section 375 of the Indian Penal Code, which exempts forceful sexual intercourse by a man with his wife from the offence of rape.

The court said there was an anomaly and misalignment in the erstwhile Section 377 of the Indian Penal Code (IPC), 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 heard the case today.

Starting her arguments as the second amicus curiae in the case, Senior Advocate Rebecca John emphasized that 'consent' is an underlying condition in the exceptions to Section 375 IPC.

The amicus curiae also submitted before the High Court that the definition of rape in Section 375 has two components, reported Bar and Bench. She said that the first part (from a-d) is descriptive of sexual acts and the second part (firstly to seventhly) lists the circumstances that lead to rape.

John also referred to the United Kingdom’s Sexual Offences (Amendment) Act,1976, that stated that the “husband cannot be guilty of a rape committed by himself upon his lawful wife. In 1991, the House of Lords had struck down the exception and criminalised marital rape.

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.

Finally today in the arguments Rebecca John said 'Can't Allow an Absurdity to Prevail' regarding marital rape exception.