There are three categories of petitions before Chief Justice D Y Chandrachud and Justices P S Narasimha and J B Pardiwala – one, related to an appeal filed by a husband against whom the Karnataka high court has ordered filing of rape charges despite the exception; second, the PILs challenging the constitutional validity of the second exception to Section 375 of te IPC decriminalising ‘marital rape’; and third, related to the appeal against a split verdict of the Delhi HC on the live issue.
Solicitor general Tushar Mehta suggested that the SC could request an ‘umpire judge’ of the Delhi HC to expeditiously decide which of the views expressed in the split verdict by a bench of Justices Rajiv Shakdher and C Hari Shankar was correct. It would give SC the benefit of a HC decision, he said.
Alternatively, the SC can hear it, though the first option would be better, Mehta said. But the CJI-led bench said, “It is not necessary to send the issue for adjudication by an umpire judge in Delhi HC as we already have the benefit of opposing views of the two HC judges.”
Given the build up of experienced advocates – Indira Jaising, C U Singh, Karuna Nundy and Gopal Shankaranarayanan – arguing for deletion of the exception to Section 375, the SG said, “The sensitive issue having huge social ramification needs to be addressed with maturity.”
The bench asked all counsel to file their written submissions by March 3 and appointed counsel Pooja Dhar and Jaikirat S Jadeja as nodal counsel for preparing common compilation on case laws.
The bench also asked senior advocate Sidharth Dave, who appeared for the husband ordered to face rape charges for allegedly having forcible sex with wife, to redact his wife’s name from the pleadings so as not to make her identity public.
The Karnataka HC’s Justice M Nagaprasanna in March last year had refused the plea of the husband to exempt him from facing rape charges for allegedly having forcible sex with his wife in accordance with Exception 2 to Section 375 of IPC, which provided that “sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape”. The judge had said, “The institution of marriage does not confer, cannot confer and in my considered view, should not be construed to confer any special male privilege or a license for the unleashing of a brutal beast…”
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