Senior Advocate Indira Jaising urged the Supreme Court to prioritize the pending marital rape issue during today’s(on 16th July) hearing. Delays occurred as the CJI Chandrachud-led bench focused extensively on a tax case.
Thank you for reading this post, don't forget to subscribe!
NEW DELHI: Senior Advocate Indira Jaising today(on 16th July), made a significant request before the Supreme Court of India, urging the court to prioritize the marital rape issue that is currently pending. The case, which was listed for hearing today, faced delays as the Chief Justice of India (CJI) Chandrachud-led bench was preoccupied with a tax case that consumed most of the day.
During the proceedings, Jaising stated-
“This concerns the marital rape case, and we request it be prioritized.”
Responding to this, the CJI remarked-
“If we cannot address it today, we’ll schedule it for tomorrow or the day after.”
Previously, on July 12, Senior Advocate Nundy had mentioned before CJI Chandrachud the need to list the marital rape petitions, noting that the notice was returnable for Friday, July 12. In response, the CJI assured that the petitions would be addressed on the following Tuesday(16th July).
The central issue before the Supreme Court involves the criminalization of marital rape, specifically challenging Exception 2 of Section 375 of the Indian Penal Code (IPC), which currently exempts married women from filing rape charges against their husbands.
ALSO READ: New Criminal Laws Criticized for “Marital Rape” Exemption Clause
In March 2023, Jaising informed the court that a common compilation for the case was ready. Representing the Union of India (UoI), Solicitor General (SG) Tushar Mehta had stated that their reply was also prepared but needed final vetting.
In September 2022, the Supreme Court had issued a notice in the appeal against the split verdict delivered by the Delhi High Court regarding the criminalization of marital rape. Justice Shakdher had deemed the provision unconstitutional, striking it down, while Justice Harishankar upheld its constitutionality, citing “intelligible differentia”.
The High Court’s judgment stemmed from petitions filed by two NGOs, RIT Foundation and All India Democratic Women’s Association, along with two individuals. They challenged the constitutionality of Exception 2 to Section 375 and Section 376B of the IPC, arguing that the exception unconstitutionally excludes marital rape as a criminal offense. The petitions asserted that this exception violated married women’s rights under Articles 14, 15, 19, and 21 of the Indian Constitution.
Justice Shakdher declared-
“Marital rape remains rape, and the exception under the Indian Penal Code, 1860, infringes upon the wife’s rights to life, equality, and freedom of expression.”
He further emphasized that the outdated notion behind the exception, rooted in the ideas of Hale, needed to be “exorcised”.
ALSO READ: India’s New Penal Code: Plea in Supreme Court to Criminalize Marital Rape
Conversely, Justice Harishankar cited numerous examples of various male and female relationships, including mother-son, girlfriend-boyfriend, and brother-sister. He argued that the husband-wife relationship, formed through marriage, is unique and distinct from these other relationships. Emphasizing the sanctity of marriage, he stated that undermining marital relations equates to ignoring plain reality.