Today, On 17th October, In the debate over marital rape criminalization, Senior Advocate Karuna Nundy emphasized, “This is not a case of men versus women, but of people versus patriarchy.” The next Supreme Court hearing on the matter is scheduled for Tuesday, October 22. This case has far-reaching implications for gender justice and the legal recognition of marital rape.
New Delhi: The Supreme Court heard a series of petitions today that seek the criminalization of marital rape. The petitioners are challenging the constitutional validity of the exception in Section 375 of the Indian Penal Code (IPC), which states that sexual intercourse between a husband and wife does not fall under the definition of rape.
A similar provision is included in Section 63 of the Bharatiya Nyaya Sanhita (BNS), which is set to replace Section 375 of the IPC. Several petitions are also contesting the corresponding provision in the BNS.
A bench comprising Chief Justice of India DY Chandrachud, Justice JB Pardiwala and Manoj Misra was hearing the matter.
The hearing has concluded for the day, and the matter scheduled for Tuesday, October 22
Read Also: India’s New Penal Code: Plea in Supreme Court to Criminalize Marital Rape
Senior advocate Karuna Nundy, representing one of the petitioners, began the arguments by referencing the provisions of the IPC and BNS concerning marital rape.
Chief Justice of India (CJI) remarked,
“It is a constitutional question. There are two judgments before us, and we have to decide. The core issue is the constitutional validity of these penal provisions.”
Nundy urged the court to strike down the provision, arguing that it is unconstitutional.
The bench responded,
“You are claiming the penal provision violates Article 14 (right to equality), Article 19, and Article 21 (right to life and personal liberty)… When Parliament enacted the exception clause, it intended that sexual acts between a man and his wife, if she is above 18 years, cannot be considered rape.”
The bench then questioned whether striking down the immunity clause would mean the offence falls under the main rape provision or if the court could “create a separate offence or adjudicate the validity of the exception.”
The hearing is ongoing. Under the exception in Section 375 of the IPC, which has been replaced by the BNS, sexual acts between a man and his wife, if she is not a minor, are not considered rape.
The new law’s Exception 2 to Section 63 maintains that “sexual intercourse or acts by a man with his own wife, if she is over 18, is not rape.”
The Centre expressed concern that, in the context of the evolving social and family structures, the misuse of amended provisions cannot be ruled out, as it would be challenging to prove consent in such cases. One of the petitions relates to the Delhi High Court’s split verdict from May 11, 2022.
The appeal brought by a woman who had originally filed the petition, and both Justices Rajiv Shakdher and C Hari Shankar agreed to allow the appeal to the Supreme Court, recognizing that the case raises significant legal questions requiring resolution by the apex court.
The Central government recently submitted a counter affidavit opposing any judicial intervention in the issue of criminalizing marital rape, arguing that it is the Parliament’s prerogative to make such a decision after considering inputs from all relevant stakeholders.
The Centre’s affidavit noted that married women are already protected under existing laws, such as those addressing domestic violence and cruelty to married women, in cases of violence by their husbands.
The government further stated that the concept of consent must be viewed differently within the context of marriage, where there is an expectation of reasonable sexual access between spouses. However, the affidavit clarified that this expectation does not give a husband the right to coerce his wife into sexual acts against her will.
The Centre added that it may be “excessive and disproportionate” to apply anti-rape laws in such situations.
A bench of Chief Justice of India DY Chandrachud, along with Justices J B Pardiwala and Manoj Misra, announced that the hearing on pleas regarding the criminalization of marital rape would commence on Thursday. This hearing is significant given the Centre’s opposition to criminalizing marital rape, arguing that making sexual acts by a man with his wife punishable as “rape” could severely impact conjugal relationships and disturb the institution of marriage.
Senior Advocate Karuna Nandy, representing some of the litigants, brought up the matter at the end of the day’s proceedings after it had not been heard.
CJI Chandrachud responded,
“Marital rape matter will be first on board, we will start tomorrow.”
When Solicitor General Tushar Mehta, appearing for the Centre, requested a postponement.
The CJI declined, stating,
“It is a fixed matter on board, let them start tomorrow.”
Under the exception clause of Section 375 of the Indian Penal Code (IPC), now replaced by the Bharatiya Nyaya Sanhita (BNS), sexual intercourse between a man and his wife (if she is not a minor) is not considered rape. The BNS maintains this stance in Exception 2 to Section 63 (rape).
The Supreme Court previously, on January 16, 2023, sought the Centre’s response to petitions challenging the IPC provision, which protects husbands from prosecution for forcible sexual intercourse with adult wives. In May 2023, the court also issued notice to the Centre regarding a similar plea challenging the BNS provision.
The Centre has highlighted the legal and social implications of the matter, and one of the cases before the Supreme Court stems from a split verdict delivered by the Delhi High Court on May 11, 2022.
Additionally, a man prosecuted for marital rape following a Karnataka High Court order is appealing the exemption of husbands from allegations of rape, which the court ruled violates Article 14 of the Constitution. Public interest litigations (PILs) have also been filed challenging the constitutionality of the exception under Section 375 of the IPC.