SC to decide on marital rape law despite Centre’s silence

The Supreme Court on Wednesday made it clear that it will decide the legality of the immunity granted to husbands from prosecution for marital rape solely on legal principles, even if the Union government does not take a stand on the issue.
“It’s a matter of law. They will have to argue on the point of law if they have chosen not to file an affidavit,” said a bench led by Chief Justice of India (CJI) Dhananjaya Y Chandrachud.
The court’s statement came after senior counsel Indira Jaising, representing one of the petitioners, urged the bench to ensure an early hearing of the matter. During the proceedings, another lawyer pointed out that despite several opportunities, the Centre had yet to file its affidavit, clarifying its position on the issue.
Responding to this, the bench, which also included justices JB Pardiwala and Manoj Misra, stated that the case, which challenges a legal provision of the penal code, would proceed as a question of law.
The case figured in the court’s list of business on Wednesday, but it could not be heard due to the day-long hearing in another matter relating to customs appeals.
The Supreme Court is currently dealing with a batch of petitions challenging the constitutionality of Exception 2 under Section 375 of the IPC, which exempts a husband from being prosecuted for raping his wife. These public interest litigations (PILs) argue that the exception is discriminatory against married women who are sexually assaulted by their spouses.
Also Read: Criminalising marital rape will have ramifications: Govt tells Supreme Court
The issue also includes the Delhi High Court’s split verdict from 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 had 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. However, the new government in Karnataka has not clarified whether it supports this position.
In January 2023, the Supreme Court appointed advocates Pooja Dhar and Jaikriti S Jadeja as nodal counsel to streamline the proceedings by compiling a common document of relevant materials from all parties.
The Union government has yet to finalise its stance on the matter.
Last year, it informed the court that criminalising marital rape would have significant “social ramifications,” and it has since initiated consultations with states and stakeholders.
Solicitor general Tushar Mehta argued that the issue cannot be viewed solely through the lens of legal principles but must also consider the wider social consequences. Despite this, no affidavit has been filed by the Centre to clarify its final position.
This case has significant legal and social implications.
In September 2022, while delivering a judgment on the Medical Termination of Pregnancy Act, the Supreme Court made a landmark ruling that forcible sex by a husband can be considered rape under that statute, marking the first legal recognition of marital rape in India.
The Supreme Court has previously interfered with Exception 2 of Section 375 of the IPC, although in a limited manner. In 2017, the court read down the provision to restrict the immunity to marriages where the wife is over 18 years of age, as opposed to the previous threshold of 15 years. However, at that time, the court did not deliver an opinion on the broader issue of marital rape.
In May this year, the CJI-led bench had also admitted a fresh petition contesting the exception for marital rape under the Bharatiya Nyaya Sanhita (BNS) – the new criminal code that replaced the IPC from July 1. This petition by the All India Democratic Women’s Association (AIDWA) has also been tagged with the older batch of petitions raising the same issue.