SC to begin final hearing on pleas concerning marital rape

The Supreme Court on Wednesday said it would list for final hearing, after three weeks, a batch of petitions pertaining to the contentious issue of marital rape. The apex court is seized of petitions raising the vexed legal question of whether a husband should enjoy immunity from prosecution for the offence of rape if he forces his wife, who is not a minor, to have sex.

Under the exception clause of Section 375 of the Indian Penal Code, now repealed and replaced by the Bharatiya Nyaya Sanhita, 2023, sexual intercourse or sexual acts by a man with his wife, the wife not being minor, is not rape.

 Even under the new law, exception 2 to section 63 (rape) says that “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 batch of pleas concerning the issue came up for hearing before a bench of Chief Justice Surya Kant and Justices Joymalya Bagchi and V Mohana.

Solicitor General Tushar Mehta, appearing for the Centre, told the bench that counter affidavit filed earlier by the Centre in the lead case may be treated as reply in other petitions as well.

“List the matter for final hearing after three weeks,” the bench said, indicating that the matter would be heard on Wednesdays and Thursdays.

“We will notify the date,” the CJI said.

During the hearing, the bench observed that it would examine the aspects, including whether a prosecution can be sustained if the marital rape exception survives, and whether the exception itself was constitutionally valid.      

On September 7, senior advocate Indira Jaising had mentioned before the bench one of the petitions related to the prosecution of a husband for marital rape.

The apex court had then said it would await the Centre’s stand on the pleas before fixing a suitable date for hearing on the issue.

The bench was told that the batch of petitions pertain to constitutional validity and interpretation of the provisions concerning marital rape in the criminal law.

The top court had on January 16, 2023, sought the Centre’s response on a clutch of petitions assailing the IPC provision which provides protection to a husband against prosecution for forcible sexual intercourse if the wife is an adult.

Later, it also issued notice to the Centre on a similar plea challenging the BNS provision on the issue.

The newly enacted laws -- the Bharatiya Nyaya Sanhita, the Bharatiya Nagarik Suraksha Sanhita and the Bharatiya Sakshya Adhiniyam -- came into effect from July 1, 2024, replacing the IPC, the CrPC and the Evidence Act.

One of pleas in the apex court arises from the Delhi High Court’s split verdict of May 11, 2022 on the issue. The appeal has been filed by a woman, who was one of the petitioners before the High Court.

While delivering a split judgement, High Court judges Justice Rajiv Shakdher and Justice C Hari Shankar had concurred on granting the petitioners a certificate of leave to appeal in the Supreme Court as the matter involved substantial questions of law which required a decision by the top court.

While Justice Shakdher, who headed the division bench, favoured striking down the marital rape exception for being “unconstitutional” and said 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, Justice Shankar said the exception under the rape law is not “unconstitutional and was based on an intelligible differentia”.

In a separate matter, the Karnataka High Court has earlier said exempting a husband from the allegations of rape and unnatural sex with his wife runs against Article 14 (equality before law) of the Constitution.