Page 3 - Section 375 News Today

"If a woman tricks a man under false promise of marriage, she can't be prosecuted. But a man can be prosecuted for the same offence. What kind of law is this?" said Justice A. Muhamed Mustaque.

Of the 4,169 women who experienced sexual violence, 82 per cent said the perpetrator was their husband

A closer scrutiny of the legislative history of the Marital Rape Exception appears to indicate that it was perhaps always intended to be only a clarificatory provision, and nothing more.

Justices Rajiv Shakdher observed that the offence of rape and injury caused remains the same, irrespective of who the offender is. 'What may make, or mar, a marriage, cannot be predicted by us,' Justice C. Hari Shankar said.

The legal question before the court was whether Exception 2 in Section 375 of the Indian Penal Code is against the Constitution

The batch of petitions listed for verdict challenges Exception 2 to Section 375 of the Indian Penal Code (IPC), which exempts non-consensual sex between husband and wife from the ambit of rape.

A two-member bench pronounced a split verdict with Justice Rajiv Shakdher, who headed the division bench, in favour of criminalising marital rape and Justice C Hari Shankar holding a contrary view and observing that the exception under the IPC is not “unconstitutional". 

"The institution of marriage does not confer, cannot confer and in my considered view, should not be construed to confer, any special male privilege or a license for unleashing of a brutal beast," the court said.

The bench rejected an appeal and asserted the judgement of conviction of a rape accused and the resultant sentence by a trial court in 2018.

Notably, the Court has delinked the instant petition from the batch of pleas filed before the Court seeking criminalization of marital rape.