The Supreme Court Today (May 17th) sought the Centre’s stand on a petition challenging the marital rape exception under the new criminal laws. A bench headed by CJI D Y Chandrachud issued notice on the petition by the All India Democratic Women’s Association (AIDWA) and said it would be listed for hearing in July along with other petitions seeking to criminalise marital rape.
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NEW DELHI: The Supreme Court today sought the Centre’s stand on a petition challenging the marital rape exception under the newly enacted criminal laws. A bench led by Chief Justice D Y Chandrachud issued a notice on the petition filed by the All India Democratic Women’s Association (AIDWA), scheduling it for hearing in July along with other petitions aiming to criminalize marital rape.
“It is a constitutional issue. This will be live even after the new code,”
-remarked the bench, which also included Justices J B Pardiwala and Manoj Misra.
Previously, on January 16, 2023, the Supreme Court had requested the Centre’s response to several petitions challenging the Indian Penal Code (IPC) provision that shields a husband from prosecution for forcible sexual intercourse if the wife is an adult. Under Section 375 of the IPC, sexual intercourse or sexual acts by a man with his wife, if she is not a minor, is not classified as rape.
This exemption persists under the new law, the Bharatiya Nyaya Sanhita (BNS).
Exception 2 to Section 63 (rape) of the BNS specifies,
“Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”
The Bharatiya Nyaya Sanhita, along with the Bharatiya Nagarik Suraksha Sanhita (BNSS) and the Bharatiya Sakshya Act, forms the newly enacted laws that will overhaul the criminal justice system, effective from July 1.
In addition to challenging the BNS exception, AIDWA has petitioned the Supreme Court to scrutinize the constitutionality of Section 67 of the BNS. This section prescribes imprisonment ranging from two to seven years for married men who rape their separated wives. AIDWA’s plea, filed through lawyer Ruchira Goel, argues that the penalty is lower than the mandatory minimum 10-year sentence applicable in other rape cases.
The petition also contests Section 221 of the BNSS, which it claims facilitates a “lenient regime” under Section 67 by requiring a court to establish “prima facie satisfaction of the facts which constitute the offence upon a complaint… by the wife” before taking cognizance of the offence.
The petitioner emphasized that the marital rape exception violates Articles 14 and 15 of the Constitution by negating a married woman’s consent to sex and perpetuating gender stereotypes about women’s subordination.
“The impugned provisions, in pegging the legal status of a woman’s consent to her marital status, are manifestly arbitrary. There is no determining principle to justify the select deprivation of married women of a legal right to complain of the commission of the offence under Section 63 of the BNS by her husband,”
-the petition argued.
It further stated that the justification of protecting the “institution” of marriage as an “objective” to sustain the exception is wholly unjust and unfair.
The petition also asserted that the marital rape exception contravenes Article 19(1)(a) and Article 21 of the Constitution, as it infringes on a married woman’s rights to bodily integrity, decisional autonomy, and dignity.
“Given that this Hon’ble Court is seized of the matter insofar as it concerns the pari materia (in similar matter or when two provisions of two different statutes deal with the same subject) provisions of the BNS and BNSS as they were contained in the IPC and CrPC, it is prayed that this Hon’ble Court hear the instant case, which challenges provisions of the BNS and BNSS that constitute and secure the MRE (marital rape exception), respectively,”
-the plea stated.
One of the pending petitions in the Supreme Court relates to the Delhi High Court’s split verdict on May 11, 2022, regarding this issue. This appeal was filed by a woman who was one of the petitioners before the Delhi High Court. Despite differing views, both High Court judges—Justice Rajiv Shakdher and Justice C Hari Shankar—agreed to grant a certificate of leave to appeal to the Supreme Court, recognizing that the matter involved substantial questions of law requiring the top court’s intervention.
AIDWA was also among the petitioners before the high court. Justice Shakdher, leading the division bench, advocated for striking down the marital rape exception as “unconstitutional,” asserting,
“It would be tragic if a married woman’s call for justice is not heard even after 162 years”
-since the enactment of the IPC. Conversely, Justice Shankar contended that the exception under the rape law was not “unconstitutional” and was based on “an intelligible differentia.”
Additionally, another petition has been filed by a man against the Karnataka High Court verdict, which had cleared the way for his prosecution for allegedly raping his wife. On March 23, 2022, the Karnataka High Court ruled that exempting a husband from allegations of rape and unnatural sex with his wife violates Article 14 (equality before the law) of the Constitution.
Click Here to Read Previous Reports on New Criminal Laws
Click Here to Read Previous Reports on Marital Rapes
Click Here to Read Previous Reports on CJI
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