The Supreme Court will next week hear pleas on the contentious legal question of whether a husband should have immunity from prosecution for the offence of rape if he forces his wife, who is not a minor, to have sex.
A bench comprising Chief Justice D Y Chandrachud and Justices J B Pardiwala and Manoj Misra on Monday took note of the submissions from senior advocate Karuna Nandy, representing one of the parties, that the petitions on the issue of marital rape should be heard.
The CJI stated that the pleas would be heard next week, as the bench would be occupied this week with a batch of matters concerning taxation laws.
On July 16, senior advocate Indira Jaising, representing one of the parties, requested that the petitions be given “some priority.”
On July 16 (Tuesday), senior advocate Indira Jaisingh, representing one of the parties, sough that the petitions be given ‘some priority’.
CJI Chandrachud had indicated that the pleas would be heard and might be addressed on July 18. Under the now-repealed Section 375 of the Indian Penal Code, which has been replaced by the Bhartiya Nyaya Sanhita, sexual intercourse or sexual acts by a man with his wife, provided the wife is not a minor, was not classified as rape.
Even under the new law, Exception 2 to Section 63 (rape) states 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.” On January 16, 2023, the apex court sought the Centre’s response regarding a series of petitions challenging the IPC provision that granted protection to a husband against prosecution for forcible sexual intercourse if the wife is an adult.
Subsequently, on May 17, the court issued a notice to the Centre regarding a similar plea challenging the Bhartiya Nyaya Sanhita provision on the matter. The newly enacted laws-the Bharatiya Nyaya Sanhita, the Bharatiya Nagarik Suraksha Sanhita (BNSS), and the Bharatiya Sakshya Adhiniyam-came into effect on July 1, replacing the IPC, CrPC, and the Evidence Act.
The bench had remarked, “We have to resolve the matters concerning marital rape.” The Centre had previously stated that the issue has both legal and social implications and expressed its intention to file a response to the petitions.
One of the pleas concerns the Delhi High Court’s split verdict of May 11, 2022, on the issue. This appeal was filed by a woman who was among the petitioners before the Delhi High Court. The High Court judges, Rajiv Shakdher and C. Hari Shankar, concurred on granting the petitioners a certificate of leave to appeal in the Supreme Court due to the substantial questions of law involved that required a top court decision.
Justice Shakdher, who headed the division bench, supported striking down the marital rape exception as “unconstitutional,” emphasizing that 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. In contrast, Justice Shankar argued that the exception under the rape law was not “unconstitutional” and was based on an intelligible differentia, a concept distinguishing those grouped together from those left out.
Another plea challenges the Karnataka High Court verdict that allowed prosecution for allegedly raping one’s wife. On March 23 of the previous year, the Karnataka High Court held that exempting a husband from allegations of rape and unnatural sex with his wife contravened Article 14 (equality before law) of the Constitution.
The set of pleas comprises PILs filed against the IPC provision, challenging the constitutionality of the marital rape exception under Section 375 IPC (rape) on the grounds that it discriminates against married women who are sexually assaulted by their husbands.
