A Delhi court will hear a petition which has claimed "inconsistency" in penal provisions of unnatural sex and amended rape law which protects a man from being tried for such offence if committed with his wife.
The legal issue has been raised in a petition filed which alleges that there is "uncertainty" and "inconsistency" in the two penal provisions -- section 377 (unnatural sex) and section 375 which has an exception 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".
It said the issue should be sent to the Delhi High Court for reference and settling the position of law.
Revision petition filed by a man, accused of committing unnatural sex with his wife, sought that reference be sent to the high court as the uncertain position of law infringes the rights of a couple.
The man's plea was earlier dismissed by a magistrate on the ground that no question of law arises which is required to be sent to the high court for reference.
The petition filed by the man's counsel Amit Kumar and Anand Ranjan, has been put up for hearing before Additional Lokesh Kumar Sharma on May 19.
"The magistrate has failed to appreciate that the legal issue raised by petitioner (husband) deserves to be settled/ determined by the high court in the interest of public at large as the said uncertain/ unsettled position of law has infringed the respective rights of the husband and wife.
"Until and unless, the said uncertain position of law is settled by the high court in reference, protection available to the husbands by virtue of the Exception 2 to the amended section of 375 IPC, they cannot be prosecuted under section 377 IPC for their alleged act," Kumar said, adding that in this case, the wife was 20-year-old at the time of marriage.
"The alleged act of husband being penal at one place and non-penal at other place in IPC has made the IPC inconsistent and the same cannot be considered as a consistent/ valid law," the plea said.
The plea claimed that till date, it has not been settled
either by the Supreme Court or High Court whether such act of the husband should be considered penal or non-penal.
"In the absence of settled/ defined position of law in regard to the raised legal issue by the superior courts, finding of the trial court not to send the same in reference is not correct and proper in the eyes of law and the order is liable to be set aside," the petition said.
In this case, the woman had lodged an FIR against her husband for allegedly raping and committing unnatural sex with her. A sessions court has discharged the man of the charge of rape but said offence under section 377 of IPC was made out.
"Pass orders declaring and holding that the legal issue raised by the petitioner that whether for the cases like present one, amendment in 2013 in Section 375 IPC has made the Section 377 IPC inconsistent and uncertain, and therefore, the same qualifies to be referred to the high court under CrPC," it said.
