Supreme Court begins marital rape case hearing

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, 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 be constitute rape. It posted the matter for further hearing on October 22.

Senior counsel Rakesh Dwivedi, representing the Maharashtra Government, urged the Bench to consider referring the issue to a Constitution Bench. The AIDWA has contended that the marital rape exception went against Article 19(1)(a) and Article 21 of the Constitution as it took away a married woman’s rights to bodily integrity, decisional autonomy, and dignity.