[Marital Rape] “When Wife Below 18, it is Rape & When Above 18 it is Not? Is This the Difference in BNS & IPC?”: CJI Grills Counsel

The Supreme Court of India Today (Oct 17) is considering several petitions that seek to criminalize marital rape, which is currently exempt from prosecution under Indian law if it occurs between spouses. The case is being heard by a bench led by Chief Justice of India (CJI) DY Chandrachud, along with Justices JB Pardiwala and Manoj Misra. Senior Advocate Karuna Nundy appeared before the court, representing civil appeals. During the proceedings, the CJI asked Nundy, “Are you appearing before us in the appeal against the Delhi High Court verdict?” Nundy confirmed, “Yes, I am appearing.” The CJI noted, “It is a constitutional question. There are two judgments before us, and we need to make a decision.”

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NEW DELHI: The Supreme Court of India is currently reviewing multiple petitions advocating for the criminalization of marital rape. Presently, Indian criminal law exempts marital rape from prosecution if the act occurs between spouses.

The matter is being heard by a bench comprising Chief Justice of India (CJI) DY Chandrachud, along with Justices JB Pardiwala and Manoj Misra.

During the proceedings, Senior Advocate Karuna Nundy made her appearance, representing civil appeals.

When Nundy appeared, the CJI inquired,

“Are you appearing before us in the appeal against Delhi High Court verdict?”

To which Nundy affirmed,

“Yes, I am appearing.”

The CJI then pointed out,

“It is a constitutional question. There are two judgments before us, and we have to decide.”

The Chief Justice explained that the primary issue at hand is the constitutional validity of the marital rape exception. Addressing Senior Advocate Indira Jaising’s argument, the CJI noted,

“The core issue is of constitutional validity. Ms. Jaising, your argument is that even if the marital rape exception is valid, even then charges can be framed. So, first we have to apply our mind to the constitutional validity and then we can get to your arguments.”

Jaising clarified,

“There is no need to link it with restitution of conjugal rights,”

To which the CJI agreed,

“Ok, we will not.”

Karuna Nundy further elaborated on the background, mentioning that the case began when the All India Democratic Women’s Association and another foundation approached the Delhi High Court. Nundy led the arguments before the High Court and highlighted the focus of the current challenge:

“Section 375, Exception 2 of IPC (exception if alleged act of rape is between spouses) was challenged. It is para material to Section 63 of the Bharatiya Nyay Sanhita.”

She added,

“Both provisions and the tiny difference is laid down before the Bench.”

Nundy emphasized the importance of explicit consent in sexual relationships by stating,

“It’s a ‘yes means yes’ (issue). Consent means when the woman expressly gives consent.”

In the context of age, the CJI highlighted the difference between the Indian Penal Code (IPC) and the Bharatiya Nyay Sanhita (BNS):

“When the wife is below 18, it is rape, and when it is above 18, it is not. So, that is the difference in BNS and IPC.”

Nundy responded,

“Yes, it was held by this court since it was unconstitutional.”

The Chief Justice further clarified the issue by referring to a prior Supreme Court ruling:

“So, the age of 15 in IPC was read to mean 18 as per the SC judgment. So we have to judge whether any sexual intercourse with a wife above 18 is not rape… That is the ground.”

Nundy also addressed the issue of non-consensual anal intercourse, pointing out a loophole in the exception clause:

“Anal intercourse is exempt under Exception 2 if committed by the husband – non-consensual anal intercourse. Of course, consensual anal intercourse after Navtej (judgment) is not a crime.”

The CJI summarized the crux of the challenge, stating,

“So, Exception 2 says that anal or vaginal intercourse with wife above 18 is not rape, and that is what you are challenging.”

Nundy confirmed,

“Yes. Even insertion of objects…”

At this point, the CJI noted a hypothetical scenario,

“If a man causes another person to have sexual intercourse with his wife, then it will fall under Exception 2. It will definitely constitute an offence. ‘By a man’ would mean he himself as the husband does it. If the husband causes it to be done, then the person would be guilty of rape.”

Nundy added,

“It will turn on whether the act of abetment is sexual or not.”

Justice Pardiwala then inquired about the term “sexual act,” asking,

“The word ‘sexual act’ has not been defined, right? How do you interpret the last part ‘any other person’?”

The CJI responded,

“It says ‘or makes her to do with any other person..’”

Justice Pardiwala pressed further,

“Suppose a husband forces wife to act as per clause (d) (of Section 375, IPC, which says that it is rape if a man forcefully applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person) – will he (a husband) be covered under Exception 2 (marital rape exception)? No, he will not.”

Nundy disagreed,

“He will.”

However, the court countered,

“No, that is an incorrect reading.”

The CJI intervened,

“No, Ms. Nundy, you may have a point… He may be covered. But the exception is overbroad since sexual acts between man and wife also cover what is there in point (d).” He continued, “So, what you are saying is that if clause (d) (of Section 375 IPC) is a sexual act, and if such act is with a third party, then Exception 2 (marital rape exception) will protect the husband, and that is why Exception 2 is constitutionally invalid on the aspect of over-broadness.”

Nundy concluded,

“Even if the husband is not covered, then also, I am well since the husband can be charged separately.”

The CJI added,

“But not for rape… It will be for abetment only.”

Before adjourning for lunch, the CJI stated,

“Okay, we will hear post 2 PM. Please formulate grounds of challenge and let us hear then. Ms. Nundy, please wrap up in an hour so that we move to the next counsel.”

The court then rose for a lunch break.

PREVIOUSLY IN APEX COURT

On 3rd October, The Centre argued that the Supreme Court cannot decriminalize marital rape, stating that married women are already protected under existing laws. It clarified that marriage does not nullify a woman’s consent, but violations within marriage are not categorized under rape laws, as other legal remedies are available.

In a counter-affidavit filed by the Union Home Ministry, represented by advocate A.K. Sharma, the Central government supported the current Indian rape law that exempts sexual relations between a husband and wife.

The Centre argued that the issue of ‘marital rape’ is more of a societal concern than a legal one, with significant implications for society at large. It emphasized that, even if criminalizing marital rape is considered, it is not within the Supreme Court’s purview to make that decision.

The affidavit stated,

“The issue cannot be resolved without proper consultation with all stakeholders and consideration of the views of all States. While the act colloquially referred to as ‘marital rape’ ought to be illegal and criminalized, the Central Government asserts that a woman’s consent is not nullified by marriage, and its violation should result in penal consequences. However, the consequences of such violations within marriage differ from those outside it,”

The affidavit further stated that a violation of consent should be punished differently, depending on whether the act occurs within or outside a marriage. The Centre noted that within marriage, there is an ongoing expectation of reasonable sexual access between spouses, but clarified that this does not give a husband the right to force his wife into sexual relations against her will.

However, the Centre argued that it may be excessive and disproportionate to punish a man under anti-rape laws for such an act within marriage. It pointed out that Parliament has already established various remedies to protect a married woman’s consent, including laws against cruelty to married women (Section 498A of the Indian Penal Code), laws protecting the modesty of women, and provisions under the Protection of Women from Domestic Violence Act, 2005.

The affidavit concluded,

“The sexual aspect is just one of many facets of the relationship between husband and wife, which forms the foundation of their marriage. Given the nature of the marital institution in our socio-legal context, if the legislature decides that maintaining the Exception is necessary for preserving the institution of marriage, it is submitted that it would not be appropriate for this Hon’ble Court to strike it down,”

The counter-affidavit was submitted in response to a series of petitions seeking the criminalization of marital rape. The Centre acknowledged that the act commonly referred to as ‘marital rape’ should be illegal and criminalized, but emphasized that the consequences for such violations differ within the context of marriage.

The Central government criticized the petitioners’ perspective, stating that treating marriage as merely a private institution is a one-dimensional view. It argued that the relationship between a married woman and her husband cannot be handled in exactly the same manner as other cases.

Furthermore, it stated that it is the legislature’s responsibility to classify the penal consequences of sexual abuse differently based on various circumstances. The Centre contended that the current law does not disregard consent between spouses, but instead applies a different approach when it occurs within a marriage.

This differentiation, according to the government, aligns with Article 14 (right to equality) of the Constitution, as it refuses to treat two inherently different situations sexual relations within a marriage and those outside of it as equal. The Union government reaffirmed its commitment to the liberty and dignity of women, but argued that marital rape does not need to be criminalized because there are already “suitably tailored penal remedies” in place.

The case is currently being heard by a Bench led by Chief Justice of India DY Chandrachud, alongside Justices JB Pardiwala and Manoj Misra.

Marital rape excluded from the definition of “rape” under Exception 2 of Section 375 of the Indian Penal Code (IPC). A comparable provision is also included in the newly enacted Bharatiya Nyaya Sanhita (BNS), which replaced the IPC on July 1 of this year.

In 2022, the Delhi High Court issued a divided ruling on whether marital rape should be considered a criminal offense. Following this, the issue was brought before the Supreme Court in September of the same year.

Click Here to Read Previous Reports on Marital Rape

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