The Supreme Court posted the marital rape exception pleas for final hearing and asked whether a husband can be prosecuted for rape of his wife while the exception’s constitutional validity is undecided.
New Delhi: The Supreme Court on Wednesday posted for final hearing the batch of petitions challenging the marital rape exception under India’s rape law, and in a significant framing of the issue questioned whether a husband can be prosecuted for the rape of his wife while the constitutional validity of that exception remains undecided, Justice Joymalya Bagchi asking whether a prosecution can be permitted so long as a clear statutory exception continues to exist on the books [Hrishikesh Sahoo v. State of Karnataka and Others].
A Bench of Chief Justice of India Surya Kant and Justices Joymalya Bagchi and V. Mohana heard a cluster of matters challenging and defending Exception 2 to Section 375 of the Indian Penal Code now carried forward as the corresponding exception under Section 63 of the Bharatiya Nyaya Sanhita which provides that sexual intercourse by a man with his own wife, the wife not being a minor, is not rape. After hearing a battery of senior counsel, the Court fixed the matter for final hearing, clarifying that it would decide both the validity of the exception and the distinct question of whether a prosecution can be sustained while the exception stands.
The threshold question the Court framed
The most consequential feature of the hearing was the Court’s identification of a preliminary, and analytically prior, question: even if the exception is ultimately struck down, what is the position pending that verdict? Justice Bagchi framed it directly:
“Till we take a call on the constitutional vires of the exception, can a prosecution [for marital rape] be permitted? We will definitely protect the victims. But is it within the domain of a prosecutor to prosecute a person where there is a clear definition of an exception in S. 375 IPC?”
The question matters because it separates two things often collapsed together in the public debate the constitutional challenge to the exception, and the interpretive question of whether, on particular facts, a husband can be prosecuted despite the exception’s presence on the statute book. The Court made clear it would consider both: whether a prosecution can be sustained if the marital rape exception survives, and whether the exception survives at all. It indicated the hearing would begin with the appeal against a Karnataka High Court judgment which had held that the exception is not absolute and that a husband who forces non-consensual sex on his wife could be prosecuted under Section 376 IPC.
A penal law, and the Article 20 dimension
Justice Bagchi’s questioning drew out a constitutional dimension that has featured less prominently in the wider discourse — the rights of the accused under Article 20. While accepting the petitioners’ submission that marriage does not result in a merger of individual autonomy, the judge emphasised that the challenge concerned a penal provision, and that striking it down could have consequences for the guarantee against being convicted under a law not in force at the time of the act.
“We fully appreciate the submission that there is no question of marriage resulting in a union of individual autonomy. Point well taken. Now see the law as it stands. It is a penal law. And therefore, rightly or wrongly, before a constitutional court renders a verdict that the exception was unreasonable or manifestly arbitrary, can we permit a prosecution on that score?”
When Senior Advocate Karuna Nundy argued that criminalising marital rape would not create a new offence the offence of rape already existing on the statute, with only a class of persons carved out by the exception Justice Bagchi disagreed, cautioning against reading the Constitution “in silos.” He observed that the Article 21 rights of the wife had to be balanced against the Article 20 rights of the accused, and that in penal law the Court had to factor in questions of mens rea and culpability “so that we do not spring surprises upon our citizens.” The exchange signals that the eventual hearing will turn not only on the dignity and bodily autonomy of married women, but also on the criminal-law principle that penal liability should not be imposed retrospectively a tension the Court has now expressly put at the centre of the case.
The competing positions
The hearing laid bare the range of positions before the Court. Senior Advocate Indira Jaising, for the wife in the appeal arising from the Karnataka High Court, told the Court she would confine her submissions to how a marital rape prosecution can be sustained against the husband notwithstanding the exception, characterising the issue as one of interpretation of the exception rather than its constitutional validity. Nundy, in connected petitions, countered that any constitutional scrutiny necessarily engages the question of whether the provision can be “read down,” and that arguments on reading down would bear directly on the cases challenging the exception’s validity prompting the Chief Justice to assure the parties that the Court would hear both the reading-down and the striking-down of the exception.
On the government’s side, Solicitor General Tushar Mehta maintained positions consistent with the Union’s earlier stance. On a pointed query from the Chief Justice as to whether a husband who commits an act defined under Section 377 IPC against his wife could be prosecuted, the Solicitor General replied in the negative, pointing to the Court’s earlier finding that carnal intercourse between husband and wife cannot be characterised as unnatural. He also argued that it is for Parliament, not the Court, to decide what is “natural” or “unnatural” to which Nundy responded that the Union ought to file a counter-affidavit placing on record its contention that the Court lacks jurisdiction over the issue.
Background: how the challenge reached this stage
The litigation before the Court is not a single petition but a convergence of several streams, which the Court itself grouped into four categories. The first is an appeal against the Delhi High Court’s split verdict of 2022, in which one judge held Exception 2 unconstitutional while the other upheld it, leaving the question unresolved. The second is a set of public interest litigations directly challenging the exception. The third is the plea challenging the Karnataka High Court judgment that sustained rape charges against a husband — the matter with which the final hearing will open. The fourth comprises various intervening applications. Together they place before the Court the full spectrum of the debate, from pure constitutional challenge to fact-specific prosecution.
The Union’s recorded position, set out in a 2024 affidavit, has been to oppose the criminalisation of marital rape. The government has contended that married women are already protected by alternative remedies in law, that attracting the offence of “rape” to the institution of marriage may be “excessively harsh” and disproportionate, and that the question is more social than legal and falls within the domain of legislative policy, requiring consultation with the States. The petitioners, by contrast, argue that the exception denies married women the equal protection of the rape law and offends their rights to equality, dignity and bodily autonomy. With the matter now set down for final hearing the date to be notified shortly the Supreme Court is poised to deliver an authoritative verdict on one of the most contested questions in Indian constitutional and criminal law, one that successive High Courts have answered in conflicting ways and that Parliament has, thus far, left to the courts. This report deals with a sensitive subject; it concerns the legal proceedings and does not describe any individual case facts.
Case Title: Hrishikesh Sahoo v. State of Karnataka and Others, SLP (Crl) Nos. 4063-4064/2022 (and connected cases)
Bench: Chief Justice of India Surya Kant, Justice Joymalya Bagchi and Justice V. Mohana
