The Punjab and Haryana, on Monday, decided to adjudicate on the legal validity of a first information report (FIR) under Section 376 (punishment for rape) of the Indian Penal Code registered by a wife against her husband (Anupam Mahajan vs. the State of Punjab).
Justice Amol Rattan Singh while hearing a plea by the husband seeking quashing of FIR registered by the wife ordered that counsel for the parties would be required to address arguments as per the law settled so far on the issue.
The FIR was registered for offences under Sections 376 and 120-B (criminal conspiracy) of IPC against the petitioner, his mother and sister. In the FIR it was stated that the petitioner had subjected his wife to unprotected intercourse under the influence of alcohol, without her consent several times and also physically hurt her.
However, it was submitted on the petitioner’s behalf that even if the allegations detailed in the FIR were true, no offence could be made out under Section 376 since the respondent was his legally wedded wife.
The plea said that Respondent No. 2 could have initiated prosecution under the Domestic Violence Act or U/s 498-A, 323 IPC. By no stretch of the imagination section, 376 IPC is attracted in the present case.
The petitioner specifically highlighted Exception 2 to Section 375. It was clear as a cloudless sky that no offence U/s 376 IPC is made out. The case of Petitioner No. 1 will fall out in the exception Clause 2, where it is provided that sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.
It was contended that the settled position of law is that a wife above fifteen years of age cannot file a case under Section 376. the petition stated that the survival of the FIR itself is illegal and the save deserves to be quashed.
Therefore, the petitioner opposed the FIR and submitted that it was registered with closed eyes, without verifying the facts of the case.
The judgement of the Supreme Court in State of Haryana vs. Ch. Bhajan Lal was relied upon to argue that FIR and proceedings should be quashed for abuse and misuse of the process of law.
It was further brought to the Court’s attention that the matter was to be heard for framing of charge by the trial Court on 25 August.
Therefore, the High Court posted the matter for September 27 while directing the trial court to adjourn the matter to a date beyond September 27. Advocate Arnav Sood appeared for the Petitioners.
The Chhattisgarh High Court had recently ruled that marital rape is not recognised or considered an offence in Indian law and that Exception 2 to Section 375 (which defines the offence of "rape") of the Indian Penal Code (IPC) lays down that "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape. The court also highlighted that sex between the married couple even by force is not marital rape.
Marital rape is not a crime in 32 countries and one of them is India.