The appeal was brought forth by Khushboo Saifi, a petitioner in the High Court, after the bench of Justice Rajiv Shakdher and Justice C Hari Shankar granted her a certificate for appeal to the Supreme Court due to the substantial legal question involved.
![[Criminalization Of Marital Rape] "We (Centre) Will Be Filing A Reply Soon, Don't Hear It This Week": SG Mehta Tells CJI](https://i0.wp.com/lawchakra.in/wp-content/uploads/2024/06/image-5-5.png?resize=820%2C481&ssl=1)
NEW DELHI: The Solicitor General of India requested the Supreme Court today (24th Sept) to postpone hearing pleas regarding the criminalization of marital rape this week, citing that the Centre has yet to file its response on the matter.
SG Tushar Mehta informed Chief Justice DY Chandrachud,
“We have to file a reply in that; it may not be taken up this week,” as the bench concluded its proceedings for the day.
Last week, a counsel had mentioned that the Centre had not submitted a counter to the petitions challenging Exception 2 of Section 375 of the Indian Penal Code, which allows married women to file rape charges against their husbands. The Chief Justice noted that the Centre could present legal arguments even without a counter affidavit.
In March, Senior Advocate Indira Jaising informed the court that a common compilation for the case was prepared.
SG Mehta stated that their reply was complete and awaiting final review. In September 2023, the Supreme Court issued a notice in response to an appeal against the split verdict from the Delhi High Court on marital rape.
The appeal was brought forth by Khushboo Saifi, a petitioner in the High Court, after the bench of Justice Rajiv Shakdher and Justice C Hari Shankar granted her a certificate for appeal to the Supreme Court due to the substantial legal question involved.
Justice Shakdher deemed the provision unconstitutional, ordering the exception to be removed, while Justice Harishankar argued that the provision is constitutional, citing “intelligible differentia.”
The High Court’s judgment stemmed from petitions filed by two NGOs, RIT Foundation and the All India Democratic Women’s Association, along with two individuals, challenging the constitutionality of Exception 2 to Section 375 and Section 376B of the IPC for excluding marital rape as a criminal offense. The petitions claimed that this exception is unconstitutional and infringes on married women’s rights under Articles 14, 15, 19, and 21 of the Constitution.
Justice Shakdher concluded that marital rape is indeed rape and that the exception under the IPC violates a wife’s rights to life, equality, and freedom of expression, emphasizing the need to “exorcise” the outdated notion of the master of the exception.
Conversely, Justice Harishankar referenced various types of relationships and asserted that the relationship between husband and wife is distinct, underscoring the sanctity of marriage and stating that to undermine this relationship is to disregard reality.
Justice Shankar, who led the division bench, advocated for the removal of the marital rape exception, labeling it “unconstitutional.”
He expressed that it would be “tragic if a married woman’s plea for justice remains unheard even after 162 years” since the IPC’s enactment. However, he also stated that the exception in the rape law was not “unconstitutional and was based on a rational distinction.”
The concept of intelligible differentia differentiates those who are grouped together from those who are excluded.
Another plea has been submitted by a man challenging a Karnataka High Court ruling that allowed for his prosecution for allegedly raping his wife.
On March 23 of last year, the Karnataka High Court stated that exempting a husband from allegations of rape and unnatural sex with his wife violated Article 14 (equality before the law) of the Constitution.
The set of pleas are Public Interest Litigations (PILs) filed against the IPC provision, challenging the constitutionality of the marital rape exception under Section 375 (rape) of the IPC on the grounds that it discriminates against married women who are sexually assaulted by their husbands.
