The Supreme Court on Thursday opened final hearings on the criminalisation of marital rape, questioning the broader implications such a decision might have on the institution of marriage as it examined the constitutionality of the law that exempts a husband from prosecution for raping his wife.
A bench led by Chief Justice of India (CJI) Dhananjaya Y Chandrachud further asked the petitioners on whether striking down the marital rape exemption in the Indian Penal Code (IPC) as well as the Bharatiya Nyaya Sanhita (BNS) — the new law that replaced the IPC with effect from July 1 — would, in effect, create a distinct criminal offence for non-consensual sex within marriage.
“If we strike down the marital rape exception, those acts will fall within the category of offences. Will we be creating a new offence? You have to tell us, can we create a separate offence?” the bench, also comprising justices JB Pardiwala and Manoj Misra, inquired, emphasising the potential legal consequences of criminalising marital rape.
“The core issue is of the constitutional validity of the provisions under the IPC and now under the BNS, which has the same provision,” it pointed out.
The hearing of the petitions, which urge the top court to nullify the marital rape exception under Section 375 of IPC, come amid the central government’s defence of the current law. The government has maintained that criminalisation should remain a legislative prerogative, underlining the complex socioeconomic factors involved and warning of possible impacts on marriage. This exception, also carried forward in the recently enacted BNS, has drawn attention since the Delhi high court delivered a split verdict on the issue in May 2022, which led to its escalation to the Supreme Court.
Representing the lead petitioners, senior advocate Karuna Nundy argued that the marital rape exception violates fundamental rights, maintaining that the exemption for marital relationships is arbitrary. She asserted that non-consensual sexual intercourse within marriage causes harm similar to rape by a stranger or a separated spouse. “The range of harm if I am raped by my husband, stranger or separated husband is not different… And if I am married and if heinous, violent acts are committed on me, then it is not rape?” she asked.
Addressing concerns about destabilising the institution of marriage, Nundy argued that privacy cannot shield abusive conduct, citing the Supreme Court’s judgment in KS Puttaswamy (privacy case judgment in 2018), which established that the right to privacy does not include a right to perpetrate gender-based violence.
At this point, justice Pardiwala questioned whether this would leave divorce as the only recourse for a husband in the event wife’s refusal to sex, to which Nundy suggested dialogue and mutual respect as alternatives to forced intimacy. She also framed the issue as a struggle against patriarchy, not one between men and women.
“Wait for the next day…or be more charming…or talk to me…Our Constitution is transforming with people transforming…This is not a man versus woman case, but it is a people versus patriarchy case,” she asserted.
Following Nundy, senior advocate Colin Gonsalves discussed international perspectives, noting how other countries approach marital rape as a crime. The court also examined specific provisions of BNS that already criminalise sexual acts between separated spouses, prompting questions about the scope of the term “separated” and whether it includes temporary physical separation.
Senior counsel Indira Jaising and Gopal Sankaranarayanan will follow Gosalves in arguing the matter.
While the Union government is represented by solicitor general Tushar Mehta, senior counsel Rakesh Dwivedi appeared for the state of Maharashtra, submitting that the court would have to also consider referring this matter to a five-judge bench. “At some point, this court will consider referring this matter to a constitution bench of five judges, considering its national importance and implications,” Dwivedi said.
The bench, which will resume arguments next week, responded that it would consider the plea of reference in due course.
The top court is seized of a batch of petitions challenging the constitutionality of Exception 2 under Section 375 of IPC, which exempts a husband from being prosecuted for raping his wife. A bundle of public interest litigations (PILs) has that the exception is discriminatory against married women who are sexually assaulted by their spouses.
The issue also includes the Delhi high court’s split verdict of May 2022, which remains pending for the Supreme Court’s final judgment. In that verdict, one judge declared the marital rape exception as “morally repugnant”, while the other judge ruled that the exception was valid and could continue to exist without violating the law.
Among the pending cases is an appeal by a man whose trial for raping his wife was upheld by the Karnataka High Court in March 2022. The Supreme Court stayed this trial in July 2022. The then BJP-led Karnataka government filed an affidavit in November 2022, supporting the prosecution of the husband, stating that the IPC allows for the criminal trial of a husband for raping his wife. The new government in Karnataka has also stuck to this stand.
On October 3, the Centre filed its affidavit defending the marital rape exception on the grounds that removing it would destroy the institution of marriage, even as it asked the court to respect the legislature’s wisdom in retaining the exception, arguing that Parliament has done so after understanding complex socio-economic and cultural aspects. It also warned of the possible misuse of the law were the exception to be removed.
The affidavit asserted that while a husband has no “fundamental right” to violate the consent of his wife, invoking stringent penal provisions of rape in matrimonial relationships would be “excessively harsh” and “disproportionate”, besides having “far-reaching socio-legal implications” on the institution of marriage in India.
Filed through the ministry of home affairs (MHA), the affidavit said that while consent is foundational, breaches of this consent in marriage should be dealt with through less severe penalties, such as provisions relating to sexual assault, use of criminal force, cruelty and domestic violence, rather than the“ghastly” provisions applied to cases involving strangers.
The Centre conceded that both parties in a marriage have rights to privacy and dignity even as it added that invoking Section 375/376 of the IPC (rape charges) in matrimonial settings “would necessarily entail consequences” that do not reflect the nuanced reality of conjugal relationships. It further stated that Parliament has adequately balanced these rights by enacting alternative provisions because applying the harsh label of “rape” to marital settings could potentially destabilise the institution itself.
