A girl subjected to involuntary sexual activity by her husband is “undoubtedly a sufferer”, the Supreme Courtroom mentioned on Wednesday, whereas grappling with the bigger query whether or not such a husband can however be prosecuted for rape when the regulation – because it stands at the moment, expressly excludes marital intercourse from the offence.
A bench headed by CJI Surya Kant and comprising justices Joymalya Bagchi and V Mohana questioned whether or not a constitutional courtroom may allow such a prosecution earlier than deciding the validity of the statutory exception underneath Part 375 of IPC, now carried ahead underneath BNS.
“The query can be how an individual could be punished for his conduct when the offence itself is outlined in a selected method,” noticed the bench because it heard a clutch of petitions difficult the exception that protects a husband from prosecution for rape of his spouse, together with an attraction arising from a Karnataka Excessive Courtroom ruling that allowed prosecution of a husband accused of treating his spouse just about as a “intercourse slave”.
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Karnataka case could also be heard first
The bench mentioned it’d hear the Karnataka case first to look at whether or not the prevailing provision could possibly be learn down to allow prosecution, earlier than taking over the direct constitutional problem to the exception.
Senior advocate Indira Jaising, showing for the spouse within the Karnataka case, argued that the HC had not struck down the exception however had interpreted the prevailing regulation to allow prosecution within the circumstances of that case. The bench flagged the problem of decoding an categorical statutory exception in a way that might expose an individual to felony legal responsibility.
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Batch listed after three weeks
The bench requested the nodal counsel to compile the pleadings and customary compilations and listed the batch for last listening to after three weeks.