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A man accused in a rape case has approached the Supreme Court taking an interesting plea: he says that he had married the victim in March, 2018. Earlier, the Allahabad High court had dismissed his plea seeking to quash the summons issued to him in the case. As he claimed that the marriage is registered, the bench comprising Justice Mohan M. Shantanagoudar and Justice Indira Banerjee directed him to file the same within three weeks.

The bench posted the matter after three weeks with a warning that no further adjournment will be granted. What If Marriage Is Proved? What happens if he produces a marriage certificate and the court finds it genuine? The court might proceed to consider his petition to quash the criminal proceedings as the current laws provide an exception to marital rape. Exception 2 to Section 375 of the Indian Penal Code reads:

Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape. However, it is also important to note Section 376B which penalizes sexual intercourse by husband upon his wife during separation.

The said provision reads: “Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine.”

Also, the Supreme Court has held in Independent Thought vs Union Of India that sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not. Challenge Pending Before Delhi HC A petition challenging the constitutionality of the IPC’s exemption to marital rape under Section 375 is pending before the Delhi High Court.

Justice JB Pardiwala of Gujarat High Court had observed that the total statutory abolition of the marital rape exemption is the first necessary step in teaching societies that dehumanized treatment of women will not be tolerated and that the marital rape is not a husband’s privilege, but rather a violent act and an injustice that must be criminalized.

JS Verma Committee Report Justice JS Verma committee had recommended removing the exception for marital rape.

It also suggested adding an explanation to the IPC to the effect that consent will not be presumed in the event of an existing marital relationship between the complainant and the accused.

  • It had said A marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation;
  • The relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity;
  • The fact that the accused and victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape.

However, these recommendations were not accepted by the Parliament.

https://www.livelaw.in/news-updates/sc-asks-rape-accused-to-file-marriage-certificate-144267


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