SC commences hearing on petitions seeking to criminalise marital rape in India

The Supreme Court on Thursday commenced hearing on petitions seeking to criminalise marital rape in India.

Currently, a man enjoys immunity from prosecution for rape, 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.

Senior advocate Karuna Nandy opened arguments on behalf of All India Democratic Women’s Association (AIDWA) which 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.

Senior counsel Rakesh Dwivedi, representing the Maharashtra Government, urged the Bench to consider referring the issue to a Constitution Bench.

Section 375 of the now repealed Indian Penal Code (IPC) defined rape as sexual intercourse without consent and against the will of a woman.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.

As the Bharatiya Nyaya Sanhita (BNS) – which replaced the colonial era IPC on July 1 – failed to criminalise marital rape, AIDWA challenged the validity of the provision that treated marital rape as an exception to rape. The top court had on May 17 asked the Centre to spell out its stand on the contentious issue.

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 18 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 husbands 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 by the Supreme Court on October 3.

“In the fast growing and ever-changing social and family structure, the misuse of the amended provisions can also not be ruled out, as it would be difficult and challenging for a person to prove whether consent was there or not,” the Centre said, opposing petitions challenging a criminal law provision that treated ‘marital rape’ as an exception to rape.

It asserted that a woman’s consent was not obliterated by marriage and its violation should result in penal consequences and “that a husband certainly does not have any fundamental right to violate the consent of the wife”. It said attracting the crime in the nature “rape” as recognised in India to the institution of marriage could be arguably considered to be excessively harsh and, therefore, “disproportionate”.

Maintaining that the act colloquially referred to as “marital rape” ought to be illegal and criminalised, it said the consequences of such violations within marriage differ from those outside it. The Centre said Parliament had provided different remedies, including those in criminal laws and the Protection of Women from Domestic Violence Act, 2005, to protect consent within marriage and ensure serious penal consequences for violations.

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 SC on September 29, 2022, 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.

Nine NDA-ruled states and the union territory of Jammu and Kashmir have moved the Supreme Court seeking to be heard on the contentious issue.