On Friday, John argued that if the exception is struck down by the Court, then Section 376B of the IPC and Section 198B of the Code of Criminal Procedure (CrPC) would also have to go.
While Section 376B deals with punishment for sexual intercourse by a husband on his wife during separation, 198B is a procedural provision which says that no Court shall take cognisance of an offence under 376B except upon a prima facie satisfaction of the facts.
“The Verma Committee had recommended deletion of Exception 2. But this was not acceded to in the 2013 Act. It is my understanding that as some kind of compromise, 376B was introduced, making it rape when sexual intercourse takes place between husband and wife when they are living separately. What is interesting is that even when the wife is living separately, Parliament though it necessary to insert the word consent…In a sense, Parliament realized that they may not even be living together, but some element may have broken down. To that extent, this was a kind of compromised provision. There was demand for removal (of the exception) but Parliament did not think it fit to remove, but brought in 376B,” she said.
She added,
“If you read 198B CrPC, it says no court shall take cognisance of an offence under 376B without prima facie satisfaction of facts. Is this coming from a gendered resistance to removing the exception? Or does it have any logical basis, because in no other provision the complainant or victim has to meet this level of satisfaction.”
Source: Barandbench
