Marital rape: SC commences hearing to determine validity of provision that protects man raping his wife
The Supreme Court on Thursday commenced hearing on petitions seeking to criminalise marital rape in India and made it clear that it would determine the validity of a criminal law provision that protected a man raping his wife.
A three-judge Bench led by Chief Justice of India DY Chandrachud said it would decide on the constitutional validity of provisions in the Indian Penal Code and the Bharatiya Nyaya Sanhita which grants immunity from prosecution for rape to a man, if he forces his wife, who is not a minor, to have sex as such a sexual act is treated as an exception to the offence of rape.
The Bench – which also included Justice JB Pardiwala and Justice Manoj Misra -- asked the petitioners to spell out their stand on the Centre's contention that making such acts punishable would severely impact the conjugal relationship and cause serious disturbances in the institution of marriage.
Opening arguments on behalf of All India Democratic Women's Association (AIDWA), senior advocate Karuna Nandy said, “It needs no mention that patriarchy and misogyny have no place in constitutional order."
"No means no. If a woman says 'no', it’s 'no' and if there is 'rape' within a matrimonial home then an FIR has to be lodged," senior advocate Colin Gonsalves submitted on behalf of the petitioners.
The Bench posed several questions to the petitioners on the issue and noted that Parliament’s intention behind the exception clause was that when a man engaged in a sexual act with wife above 18 years of age it could not constitute rape. It posted the matter for October 22.
Senior counsel Rakesh Dwivedi, representing the Maharashtra Government, urged the Bench to consider referring the issue to a Constitution Bench.
AIDWA has contended that the marital rape exception went against Article 19(1)(a) (right to freedom of speech and expression) and Article 21 (right to life and liberty) of the Constitution as it took away a married woman's rights to bodily integrity, decisional autonomy, and dignity.
Section 375 of the now repealed Indian Penal Code (IPC) defined rape as sexual intercourse without consent and against the will of a woman. But Exception 2 to Section 375 says sexual intercourse by a man with his wife, who is 15 or above, is not rape even if it is without her consent and against her will. The top court had on January 16, 2023 sought the Centre's response on petitions challenging Exception 2 to Section 375.
Under BNS too, 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".
Besides Exception 2 to section 63 of the BNS, AIDWA also challenged the constitutionality of section 67 of the BNS, which prescribes imprisonment ranging from two to seven years for married men who rape their separated wives, contending the penalty was lower than the mandatory minimum 10-year sentence otherwise applicable in cases of rape.
The Centre has defended the criminal law provision which protected a husband from being prosecuted for rape for having sex with his wife against her will.
If sexual intercourse or sexual acts by a man with his own wife without her consent is made punishable as “rape”, it may severely impact the conjugal relationship and lead to serious disturbances in the institution of marriage, the Centre said in an affidavit filed in the Supreme Court on October 3.
