PIL seeks to criminalise marital rape; Supreme Court asks Centre to spell out stand on provisions under new criminal law

Satya Prakash

New Delhi, May 17

As the Bharatiya Nyaya Sanhita (BNS) – which will replace the colonial era Indian Penal Code (IPC) on July 1 – fails to criminalise marital rape, a PIL in the Supreme Court has challenged the validity of the provision that treats marital rape as an exception to rape.

Acting on a petition filed by All India Democratic Women’s Association (AIDWA) seeking to criminalise marital rape, a Bench led by CJI DY Chandrachud on Friday asked the Centre to spell out its stand on the contentious issue.

AIDWA 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.

Terming it a “constitutional issue”, the Bench posted it for hearing in July, along with other already pending petitions seeking to criminalise marital rape.

Section 375 of the IPC defines 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.

There are three sets of petitions already pending in the SC on the issue. The first one is by a Karnataka man who is being tried for marital rape. The top court had on July 20, 2022 stayed the verdict of the Karnataka high court that put the man on trial for allegedly raping his wife ignoring Exception 2 to Section 375 IPC that treated such cases as an exception to rape.

The second set of petitions arose out of appeals filed against a split verdict delivered by the Delhi High Court on May 11, 2022 on petitions seeking to criminalise marital rape.

The third set of petitions included PILs challenging the constitutional validity of Exception 2 to Section 375 IPC that treated such cases as an exception to the main provision on rape.

In October 2017, the SC ruled that sex with one’s minor wife would amount to rape as it read down the exception to Section 375 IPC which said sexual intercourse by a man with his wife not under the age of 15 would not amount to rape.

Recognising the concept of marital rape for the purpose of abortion, the Supreme Court on September 29 said a woman becoming pregnant as a result of non-consensual sexual intercourse performed upon her by her husband was entitled to seek medical termination of such pregnancy.