Senior advocate Indira Jaising, representing one of the petitioners, urged the court to address the pleas urgently.
New Delhi: Today (Sep 18): The Supreme Court has indicated it will consider scheduling hearings on the complex legal issue of whether a husband can be immune from prosecution for rape if he coerces his wife, who is not a minor, into sex.
Senior advocate Indira Jaising, representing one of the petitioners, urged the court to address the pleas urgently.
Chief Justice D Y Chandrachud, along with Justices J B Pardiwala and Manoj Misra, acknowledged that the court is currently handling a partially heard case and will evaluate its schedule over the next two days.
“The hearings today and tomorrow will provide us with a clearer picture…we will certainly consider listing the marital rape cases,”
the CJI stated.
Earlier, on July 16, the Supreme Court had agreed to hear petitions on the legal question of marital rape. Chief Justice D Y Chandrachud had suggested that the cases might be taken up on July 18.
Under the exception clause of Section 375 of the Indian Penal Code, now repealed and replaced by the Bharatiya Nyaya Sanhita, sexual intercourse or sexual acts by a man with his wife, provided she is not a minor, is not classified as rape.
This exception is also present in the new law, with Exception 2 to Section 63 stating that “sexual intercourse or sexual acts by a man with his own wife, provided she is not under eighteen years of age, is not rape.”
On January 16, 2023, the Supreme Court had sought the Centre’s response regarding petitions challenging the IPC provision that shields husbands from prosecution for forcible sexual intercourse with an adult wife.
On May 17, the Court issued another notice to the Centre concerning a similar plea against the new provision in the Bharatiya Nyaya Sanhita. The new laws—Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam—replacing the IPC, CrPC, and Evidence Act, took effect on July 1.
The bench emphasized the need to address marital rape issues. The Centre has acknowledged the legal and social implications of the matter and intends to file a response. One of the petitions arises from a split verdict by the Delhi High Court on May 11, 2022, with an appeal filed by a woman who was a petitioner in that case.
In a split judgment, the Delhi High Court’s Justices Rajiv Shakdher and C Hari Shankar agreed that the petitioners should be granted a certificate of leave to appeal to the Supreme Court due to the substantial legal questions involved.
Justice Shankar, who led the division bench, supported striking down the marital rape exception, calling it “unconstitutional” and lamenting that it would be “tragic” if a married woman’s call for justice remains unheard after 162 years since the IPC’s enactment.
However, he also argued that the exception in the rape law was not “unconstitutional” and was based on an intelligible differentia a principle that distinguishes groups of people or things from those excluded.
Additionally, another plea challenges a Karnataka High Court verdict that allowed the prosecution of a man accused of raping his wife.
On March 23 of the previous year, the Karnataka High Court had ruled that exempting a husband from allegations of rape and unnatural sex with his wife violated Article 14 (equality before the law) of the Constitution.
These petitions, filed as Public Interest Litigations (PILs), challenge the constitutionality of the marital rape exception under Section 375 of the IPC, arguing that it discriminates against married women who are sexually assaulted by their husbands.
