The Supreme Court of India has agreed to list a case that will determine whether marital rape should be classified as a criminal offence or continue to be an exception to the criminal offence of rape. The case was last heard in January, when the Central government informed the Court that it had requested input from State governments on the criminalisation of marital rape.
Senior Advocate Indira Jaising brought up a related matter before a bench consisting of Chief Justice of India (CJI) DY Chandrachud and Justices PS Narasimha and Manoj Misra. Jaising’s plea pertains to a case of child sexual abuse.
CJI Chandrachud acknowledged that the Court still needs to resolve the challenge to exception 2 to Section 375 (rape) of the Indian Penal Code (IPC). This provision currently states that a man cannot be charged with rape for non-consensual sex with his wife, often referred to as marital rape.
Advocate Karuna Nundy, representing another petitioner, stated that the point in the marital rape case was a very short one and that Jaising would address the Court on the current state of the law. In response, the Court agreed to list the matter.
Jaising’s matter deals with the interpretation of the existing law, while Nundy’s case examines the constitutionality of the exception. Nundy is also involved in a connected public interest litigation exploring the legality of marital rape in the context of the intersection of caste and gender roles.
Previously, a division bench of the Delhi High Court delivered a split verdict on the marital rape case in May 2022. While Justice Rajiv Shakdher declared the provision creating an exception for marital rape as unconstitutional, Justice C Hari Shankar upheld it.
In March 2022, Justice M Nagaprasanna of the Karnataka High Court refused to quash a rape charge against a man accused of raping his wife and keeping her as a sex slave. The judge stated that marriage cannot be used to grant any special male privilege or a license for the “unleashing of a brutal beast” on the wife.
In July 2022, the Supreme Court stayed this Karnataka High Court order, even though the Karnataka government supported the High Court’s ruling in December of that year. An appeal against the Delhi High Court’s split verdict is also pending before the Supreme Court. In a related development, last September, the Court observed that for the purposes of the Medical Termination of Pregnancy (MTP) Act, marital rape has to be considered as falling within the meaning of ‘rape’ to protect women from forced pregnancy.