A woman subjected to involuntary sexual intercourse by her husband is “undoubtedly a victim”, the Supreme Court said on Wednesday, while grappling with the larger question whether such a husband can nevertheless be prosecuted for rape when the law – as it stands today, expressly excludes marital intercourse from the offence.
The bench asked the nodal counsel to compile the pleadings and common compilations and listed the batch for final hearing after three weeks. A bench headed by CJI Surya Kant and comprising justices Joymalya Bagchi and V Mohana wondered whether a constitutional court could permit such a prosecution before deciding the validity of the statutory exception under Section 375 of IPC, now carried forward under BNS.
“The question is also how a person can be punished for his conduct when the offence itself is defined in a particular manner,” observed the bench as it heard a clutch of petitions challenging the exception that protects a husband from prosecution for rape of his wife, along with an appeal arising from a Karnataka High Court ruling that allowed prosecution of a husband accused of treating his wife virtually as a “sex slave”.
