New Delhi: The Supreme Court on Friday quashed an FIR against a man, who was accused by his wife of rape, saying that the man rightly pointed out that as per exception 2 under Section 375 of IPC, sexual intercourse by a man with his own wife cannot be termed as rape.
Under the exception clause of Section 375 of the IPC, now replaced by the BNS, sexual intercourse or sexual acts by a man with his wife, the wife not being minor, is not rape. The judgment was delivered by a bench comprising Justices Vikram Nath and Prasanna B. Varale. The appellant had contended before the bench that he is legally wedded husband of the woman and no offence under Section 376 of IPC (rape) is made out against him since he is covered under exception to Section 375 of IPC.
The appellant also brought to court’s notice to the written statement dated August 1, 2023, filed by the woman in the matter of restitution of conjugal rights and highlighted that she did not make allegations pertaining to rape against him in it.
The bench noted that the couple had also filed a protection petition before the high court seeking protection of their life and liberty, which was granted by the high court in June 2022. The husband claimed that they sought protection as they had married against the wishes of the relatives of his wife.
Justice Nath, who authored the judgment on behalf of the bench, said it has been rightly pointed out by the appellant that as per exception 2 under Section 375 of IPC, sexual intercourse by a man with his own wife cannot be termed as rape and, hence, a charge under Section 376 of IPC cannot be sustained against the appellant. "Further, the conduct of the respondent No. 2 (complainant and cousin of woman) and 3 (woman) in failing to enter appearance despite sufficient notice is reflective of the fact that it is a dead case where no purpose shall be served in continuing the criminal proceedings alleging charges of rape against the appellant," said Justice Nath.
The bench said given the facts and circumstances of the case, it is evident that no prima facie case constituting any offence is made out against the appellant and he is entitled to the relief sought. The bench noted that it was established during the inquiry that the victim had solemnised the marriage with the appellant out of her own free will.
The bench said that it may also be noted that in the reply filed by the woman on the appellant’s petition for restitution of conjugal rights, she has not made any allegation of rape or marriage by force against the appellant.
According to the appellant, they got married in June 2022, as per Sikh rites and ceremonies against the wishes of the relatives of the woman. The husband said his wife returned to her parental home in August 2022, and he filed a petition under Section 9 of the Hindu Marriage Act, 1955 before the family court seeking restitution of conjugal rights with his legally wedded wife.
The woman in September 2022, recorded a statement under section 164 of the Cr.P.C, before the magistrate raising allegations of rape against the appellant and also alleged that the marriage has been solemnised forcibly by the appellant. It was also alleged that mother and brother of the appellant had also assisted him, and their names were included in the FIR. The police inquiry exonerated the husband's mother and brother in the case.
The husband moved the Punjab and Haryana High Court in August 2023, seeking quashing of FIR and all consequential proceedings. The high court dismissed his plea holding that the petition lacked any merit and the matter required evaluation of evidence and adjudication by the trial court.
The apex court allowed the husband’s appeal and set aside the high court order, and also quashed the FIR registered at Model Town, Hoshiarpur, Punjab. A batch of petitions are pending in the apex court seeking criminalisation of martial rape.
On October 3, 2024, the Centre in an affidavit in the top court, opposing the petitions seeking the criminalisation of marital rape, said that in matters falling squarely within the domain of the regulation of marital relationship between spouses, a societal issue, due deference be exercised while testing the validity of legislative choice made by the Parliament.
In the counter-affidavit, the Union Home Ministry said given the nature of the marital institution in our socio-legal milieu, if the legislature is of the view that, for preservation of the marital institution, the impugned exception should be retained, it is submitted that it would not be appropriate for the apex court to strike down the exception. The affidavit said the Centre is committed to fully and meaningfully protect the liberty, dignity and rights of every woman who are the fundamental foundation and a pillar of a civilised society.
The government said it attaches highest importance to ending all kinds of violence and offences causing physical, sexual, verbal, emotional and economic abuse including domestic violence against women.
