Supreme Court’s Inquiry: Challenging the Exception for Marital Rape in New Criminal Law

In a recent development, the Supreme Court has directed the Centre to provide its stance on a petition challenging the marital rape exception in the new criminal laws. Headed by Chief Justice D.Y. Chandrachud, a bench comprising Justices J.B. Pardiwala and Manoj Misra issued a notice regarding the petition filed by the All India Democratic Women’s Association (AIDWA). The court has slated a hearing for July, which will also encompass other petitions advocating for the criminalization of marital rape.

“This is a constitutional issue and will remain relevant even under the new code.” – The Bench

Previously, on January 16, 2023, the Supreme Court had requested the Centre’s response regarding petitions challenging a provision in the Indian Penal Code (IPC). This provision shields husbands from prosecution for non-consensual sexual intercourse with their adult wives. Section 375 of the IPC exempts such acts from being classified as rape if the wife is not a minor.

The new legislation, Bharatiya Nyaya Sanhita (BNS), maintains the marital rape exception in Section 63. Scheduled to take effect on July 1, BNS, along with Bharatiya Nagarik Suraksha Sanhita (BNSS) and Bharatiya Sakshya Act, aims to reform the criminal justice system.

A petition filed by AIDWA, represented by lawyer Ruchira Goel, challenges Section 67 of BNS. This section prescribes a reduced imprisonment range of two to seven years for married men who rape their separated wives, contrasting with the mandatory minimum 10-year sentence for other rape cases.
The petition contends that Section 221 of BNSS, requiring the court to be prima facie satisfied with the facts constituting the offense based on the wife’s complaint, fosters a lenient regime for marital rape.

The petition contends that the marital rape exception violates Constitutional principles, including Articles 14, 15, 19(1)(a), and 21, by disregarding a married woman’s consent, reinforcing gender stereotypes, and compromising her rights to bodily integrity, decisional autonomy, and dignity.
Another relevant case before the Supreme Court involves a split verdict by the Delhi High Court on May 11, 2022. While Justice Rajiv Shakdher deemed the marital rape exception “unconstitutional,” Justice C. Hari Shankar upheld it, citing an intelligible differentia. AIDWA was also a petitioner in this matter.

Furthermore, a man has challenged a Karnataka High Court decision permitting his prosecution for allegedly raping his wife. The High Court’s ruling on March 23, 2022, declared that exempting husbands from allegations of rape and unnatural sex with their wives violates Article 14 of the Constitution, guaranteeing equality before the law.

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