Key amendments made in a section of the Indian Penal Code to enforce stringent punishments for sexual offenders, following the 2012 Delhi gangrape case, appear to have opened up a grey area that is now being exploited by those accused of marital rape.
The Indian Express has identified at least six such cases in Delhi courts where husbands have sought refuge in an altered provision in the 2013 Criminal Law Amendment Act — Exception 2 to amended Section 375 (rape) – to claim immunity from prosecution under Section 377 (unnatural sex).
In one such case recently at a sessions court, the accused argued that under the new provision not just sexual intercourse but any “sexual acts” by a man against his wife had legal sanction and would not amount to rape.
Highlighting yet another grey area, the complainant in this case was also told a husband is immune from prosecution if the woman is above 15 years of age.
Additional Sessions Judge Kamini Lau eventually dismissed the husband’s anticipatory bail petition but questioned whether a law that was amended to strengthen women rights had in fact taken away one of her legal remedies. The judge also lamented that non-recognition of marital rape continued to propagate the “gross double standard and hypocrisy in law which is central to the subordination and subjugation of women.”
Public prosecutors have admitted that it was uncertain whether any charge under Section 377 could stick against husbands after this amendment.
Legal experts agreed that such a trend was catching on with accused adopting this course of argument in their bid to snub prosecution.
Some of Delhi’s eminent criminal lawyers have also admitted that they are puzzled by the insertion of the words “sexual acts” in Exception 2 to Section 375 without any definition or explanation.
Senior advocate Rebecca John said, “The term ‘sexual act’ has not been defined anywhere in the IPC by the legislature. Also, with a preconceived notion, the age of consent for sex was fixed at 18 years but it was retained as 15 for marital sex. Why create two distinct parameters to judge sexual behaviour? The expanded definition seeks to include all forms of sexual acts and so it is very likely that accused would exploit this anomaly.”
Former Additional Solicitor General and senior advocate Sidharth Luthra wondered why the two words were added. “With the amendment to Section 375, unnatural acts are in fact sought to be included as described. There is definitely an overlap with Section 377 and the new provision will in effect negate Section 377,” he said.
Senior advocate Colin Gonsalves also highlighted the legal anomaly. “This provision is absolutely unconstitutional. How can a law to protect all citizens equally legalise and grant validity to force and violence by the husband against his wife, culminating in forcible and violent sexual intercourse overriding her protests?” he asked.