Next week, the Supreme Court will hear key pleas on whether husbands should have immunity from prosecution for raping their wives if the wife is not a minor. The bench, including Chief Justice D Y Chandrachud, will consider the urgency of the issue highlighted by senior advocate Karuna Nandy.
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NEW DELHI: The Supreme Court is set to hear crucial pleas next week addressing the highly debated legal issue of whether husbands should have immunity from prosecution for raping their wives if the wife is not a minor. This decision comes as a significant step in the ongoing discussion about marital rape laws in India.
A bench comprising Chief Justice D Y Chandrachud and Justices J B Pardiwala and Manoj Misra acknowledged the submissions made by senior advocate Karuna Nandy, who represented one of the petitioners. Nandy emphasized the urgency of hearing the petitions related to marital rape.
Chief Justice Chandrachud confirmed that the pleas will be heard next week. He explained that the bench is occupied this week with several taxation law matters. On July 16, senior advocate Indira Jaising also highlighted the importance of these petitions, requesting that they be given “some priority.” In response, the CJI had indicated that the pleas might be taken up on July 18.
Background and Previous Developments
Under the previous exception clause of Section 375 of the Indian Penal Code (IPC), which has now been replaced by the Bharatiya Nyaya Sanhita (BNS), sexual intercourse or acts by a man with his wife, provided she is not a minor, were not considered rape.
ALSO READ: New Criminal Laws Criticized for “Marital Rape” Exemption Clause
The new law maintains this stance, stating that –
“Sexual intercourse or acts by a man with his wife, provided the wife is over eighteen years of age, is not considered rape.”
The Supreme Court had earlier sought the Centre’s response on a series of petitions challenging the IPC provision that protected husbands from prosecution for forcible sexual intercourse with adult wives. On May 17, the Court issued a notice to the Centre regarding a similar plea challenging the BNS provision.
The newly enacted laws, which include the Bharatiya Nyaya Sanhita, the Bharatiya Nagarik Suraksha Sanhita (BNSS), and the Bharatiya Sakshya Adhiniyam, came into effect on July 1, replacing the IPC, the Code of Criminal Procedure (CrPC), and the Evidence Act.
“We need to address the issues related to marital rape.”
-stated the bench, emphasizing the significance of this legal issue.
The Centre had earlier noted the legal and social implications of the issue, indicating that the government intended to file its response to the petitions.
High Court Verdicts and Appeals
One of the key petitions is related to the Delhi High Court’s split verdict on May 11, 2022, regarding marital rape. The appeal was filed by a woman who was one of the petitioners in the Delhi High Court. The High Court judges, Rajiv Shakdher and C Hari Shankar, had differing opinions on the matter. Justice Shakdher, who headed the division bench, supported striking down the marital rape exception, calling it “unconstitutional” and stating-
“It would be tragic if a married woman’s plea for justice remains unheard even after 162 years since the IPC was enacted.”
Conversely, Justice Shankar believed that the exception under the rape law was not “unconstitutional and was based on an intelligible differentia.” The concept of intelligible differentia distinguishes people or things grouped together from those that are left out, providing a basis for differential treatment under the law.
Another significant plea comes from a man challenging the Karnataka High Court verdict that allowed his prosecution for allegedly raping his wife. On March 23 last year, the Karnataka High Court ruled that exempting a husband from allegations of rape and unnatural sex with his wife contradicts Article 14 of the Constitution, which guarantees equality before the law.
Public Interest Litigations and Constitutional Challenges
The set of pleas includes Public Interest Litigations (PILs) filed against the IPC provision, challenging the constitutionality of the marital rape exception under Section 375 IPC. These petitions argue that the exception discriminates against married women who are sexually assaulted by their husbands, thereby violating their fundamental rights.