Supreme court to Examine plea Against Karnataka High Court judgement on Marital Rape
Supreme court denies Staying Karnataka high court judgement which affirmed the charges against the husband on wife’s rape complaint under section 376 IPC. On Tuesday supreme court issued a notice in Special leave petition titled HRISHIKESH SAHOO AND STATE OF KARNATAKA & ORS which was filled by a husband challenging the judgement of the Karnataka High court which rejected to quash the case for marital rape against him, filled by his wife. The trial’s court order of framing charges of rape was sustained by the High court under section 376 IPC. The bench of the Supreme court comprising CJI and Justices JK Maheshwari and Hima Kohli didn’t order for stay of the trial proceedings. Senior advocate Siddharth Dave representing the petitioner(husband) propounded that the trial is starting on 29th May. Senior advocate Indra Jaising representing for respondent(wife) opposed such a stay and submitted before the court that the trial had been stayed for over 5 years and the wife had been waiting for a long time for the commencement of the trial.
CJI said to Jaising “we have to hear the matter, take notice. The bench decided to hear the matter in the 3rd week of July. The high court refused to accept the husband’s contention that the charge cannot be framed against him due to the exception to the offence under exception 2 of section 376 of the Indian Penal code. According to the court, the exemption is not absolute. Learned senior counsel contended on this behalf that if the man is the husband and performing the very same act as that of another man, he is exempted but, the High court denies and said in considered view that such an argument can’t be allowed thus a man is man, an act is an act and rape is a rape be it performed by a man on the women i.e., husband on his wife. It is important to note that the High court has not ruled on the constitutionality of exception 2 of section 376. It should be noted that recently Delhi high on a batch of petitions reserved judgement, challenging the exemption to marital rape. The high court observed that the exemption of the husband on commission of such rape cannot be absolute as no exemption in law can be so absolute that it becomes a license for the commission of a crime against society. The exception is ‘regressive’ and would oppose the principle of equality preserved under article 14 of the constitution. A single bench of the high court comprising Justice M Nagaprasanna observed that if a man, a husband can be exempted from accusations of commission of an offence under section 376IPC inequality filtrate into such provision of law, therefore, it would oppose what is enshrined under Article 14 of the constitution.
The court further submitted that under the constitution all human beings should be treated equally whether men or women and others. If in any provision of law any thought of inequality exists it would fail the test of Article 14 of the constitution. Every person whether men or women being equal under the constitution cannot be made unequal under Exception 2 of 376 of IPC. A brief fact of the case On 21st March 2017, the wife filed a complaint with police against her husband alleging him with the offences punishable under sections 506, 498A, 323, 377 of the Indian Penal code along with Section 10 of the protection of children from sexual offences act 2012. Police after probing into the matter filed a charge sheet against the Husband and the offences under sections 498A, 354, 376, 506 of IPC and sections 5 (m) and (l) read with section 6 of POCSO Act 2012 were invoked. The special court in terms of its order dated 10.8.2018 framed charges against the petitioner alone for the offences punishable under sections 376, 498A and 506 of IPC including section 5 (m and l) read with section 6 of the POCSO act 2012. At that point, the petitioner approached the high court in the subject criminal petition seeking for quashing the charges against him under section 376 IPC. But Karnataka high court rejected a petition filed by him therefore, the husband further approached to Supreme court through a special Leave petition against the order of the High court.
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