A court here today issued notice to Delhi government on a petition claiming "inconsistency" in penal provisions of unnatural sex and the amended rape law which protects a man from being tried for such offence if committed with his wife.
Additional Sessions Judge Lokesh Kumar Sharma sought the State's response on the plea raising the legal issue alleging that there is "uncertainty" and "inconsistency" in the two penal provisions of IPC -- 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".
The court also summoned trial court record of the case and posted the matter for July 22.
The revision petition was filed by a man, accused of committing unnatural sex with his wife, seeking that reference be sent to the Delhi High Court as the uncertain and unsettled 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.
During the hearing, advocates Amit Kumar and Anand Ranjan, who appeared for the man, said the amendment done in the rape law after the December 16, 2012 gangrape case was faulty for married couples.
"The amendment was done in haste and it has made section 377 of IPC inconsistent. The amended section 375 of IPC has dangerous implications on wives.
"This legal issue has not yet been settled by the Supreme Court or high court and in these circumstances, prosecution of husbands on similar complaint of wives deserves to be stayed across the country until this issue is decided," Kumar argued.
Seeking to send reference to the high court, the petition said, "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".
The petition said, "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."
It added that in this case, the wife was 20-year-old at the time of marriage.
The counsel also said that the alleged act of husband being penal at one place and non-penal at other place in IPC has made the IPC inconsistent and it cannot be considered as a consistent or a valid law.
"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.
