A bench comprising Chief Justice DY Chandrachud and Justice JB Pardiwala stated that the pleas are already scheduled for tomorrow and will be addressed following some ongoing part-heard cases.
NEW DELHI: The Supreme Court has announced that it will hear on Tuesday(24th Sept) pleas regarding the complex legal issue of whether a husband should be granted immunity from prosecution for rape if he compels his wife, who is an adult, to engage in sexual intercourse.
A bench comprising Chief Justice DY Chandrachud and Justice JB Pardiwala stated that the pleas are already scheduled for tomorrow and will be addressed following some ongoing part-heard cases.
The pleas for expedited hearing were brought up by senior advocate Karuna Nundy, representing a party in the case.
On September 18, senior advocate Indira Jaising, representing another litigant, emphasized the urgent need for the pleas to be heard.
On July 16, the Supreme Court agreed to schedule a hearing for these pleas regarding the legal issue. The Chief Justice suggested that the cases might be addressed on July 18.
Under the now-repealed Exception clause of Section 375 of the Indian Penal Code (IPC), sexual intercourse or acts by a man with his wife, provided she is not a minor, do not constitute rape.
Similarly, the new law, the Bharatiya Nyaya Sanhita (BNS), retains this principle in Exception 2 to Section 63 (rape), stating that “sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”
On January 16, 2023, the Supreme Court requested the Centre’s response regarding several petitions challenging the IPC provision that protects husbands from prosecution for forcible sexual intercourse if their wives are adults.
On May 17, the Supreme Court issued a notice to the Centre regarding a similar plea challenging the BNS provision on this matter.
The Bharatiya Nyaya Sanhita (BNS), along with the Bharatiya Nagarik Suraksha Sanhita and the Bharatiya Sakshya Adhiniyam, came into effect on July 1, replacing the IPC, Code of Criminal Procedure (CrPC), and the Evidence Act, respectively.
“We need to address the issues surrounding marital rape,” the bench stated.
The Centre previously noted that the issue has both legal and social implications, and the government intends to submit its response to the petitions.
One of the pleas pertains to a split verdict from the Delhi High Court issued on May 11, 2022, regarding this matter.
The appeal has been filed by a woman who was one of the petitioners in the high court case.
In their split judgment, Justice Rajiv Shakdher and Justice C Hari Shankar agreed to grant the petitioners a certificate of leave to appeal to the Supreme Court, citing that the matter involved significant questions of law that needed resolution by the highest court.
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.
