New Bench to take up petitions against marital rape after CJI’s retirement
A new Bench will take up petitions seeking to criminalise marital rape after the retirement of Chief Justice of India DY Chandrachud on November 10 as the Supreme Court on Wednesday deferred hearing on the contentious issue by four weeks.
The decision to defer the hearing was taken by a three-judge Bench led by CJI Chandrachud after Solicitor General Tushar Mehta and senior lawyers Rakesh Dwivedi (for Maharashtra) Indira Jaising (for a woman) and Gopal Sankaranarayanan (representing another petitioner) said they needed at least one day each to argue the matter.
If arguments could not be completed by the end of this week it would be difficult for him to decide the matter before his retirement, said the CJI who headed the three-judge Bench that commenced hearing on the issue on October 17.
“In view of the time estimate, we are of the view that it would not be possible to complete the hearings in the foreseeable future,” the CJI said and ordered the matter to be listed before another Bench after four weeks.
“We have deep regret. We wanted to continue here,” Sankaranarayanan told the Bench.
Mehta said the Centre’s stand was that marriage did not obliterate the concept of sexual consent, but at the same time criminalising marital rape would require assessment of the case from different perspectives.
Senior advocate Karuna Nundy -- who on October 17 opened arguments on the petitions challenging provisions that gave immunity from prosecution to a man raping his wife –requested the CJI to continue with the hearing and deliver a judgment as he had a legacy of rendering very important judgments. It’s about millions of women and there was “great urgency”, she submitted.
“Your lordship’s legacy will remain forever. Let us not ridicule it by saying…,” Mehta said.
The top court is to 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.
AIDWA – one of the petitioners -- 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".
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 the Supreme Court on October 3.
