The Supreme Court recently stirred the debate over the marital rape exception in the Indian penal statute by observing whether courts can punish a husband for committing rape on a wife, who is not a minor, against her consent when the law protects such acts.
At the core of this question lies a constitutional debate and a mix of facts and law emanating from two judgments – one by the Karnataka High Court in March 2022 that allowed the prosecution of a husband for rape regardless of the marital rape exception (Exception 2 to Section 375 of the Indian Penal Code) and another by the Delhi High Court delivering a split verdict in May 2022 on a clutch of public interest litigations challenging the Exception 2 to Section 375 IPC.
The issue travelled to the top court with both high courts' decisions being challenged by the aggrieved parties along with fresh petitions filed by non-profit organisations challenging the marital rape exception provided under Section 63 of the Bharatiya Nyaya Sanhita (BNS) which replaced the IPC.
The legal dispute and the scope of consideration before the top court require an understanding of the statute in question, the judicial approach so far, and the response by the Centre which reflects why Parliament has thought it fit to retain this provision, first when the criminal reforms were introduced in 2013 following the horrific Nirbhaya gangrape incident in Delhi, and again when the BNS was introduced to replace many archaic, colonial-era laws.
{{/usCountry}}The legal dispute and the scope of consideration before the top court require an understanding of the statute in question, the judicial approach so far, and the response by the Centre which reflects why Parliament has thought it fit to retain this provision, first when the criminal reforms were introduced in 2013 following the horrific Nirbhaya gangrape incident in Delhi, and again when the BNS was introduced to replace many archaic, colonial-era laws.
{{/usCountry}}Exception 2 to Section 375 IPC states "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape". Under BNS, the exception was retained with one change where the age of the wife was revised from 15 to 18 years (aligning with earlier judicial rulings). It must be noted that the original Section 375 only exempted “sexual intercourse” by husband with wife. The 2013 amendment added the words “or sexual acts”.
While Section 375 is gender-specific, there also existed Section 377 in the IPC which related to ‘unnatural sex’ where a person could be punished for non-consensual penetrative sex. It also criminalised sexual unions between consenting adults of the same sex. However, this provision was read down by the top court in Navtej Singh Johar (2018) where the court decriminalised consensual sexual unions, leaving only non-consensual sexual acts to be punished. The new BNS completely deleted Section 377.
Marital rape is illegal across 50 American states, and three Australian states, among more than 140 countries worldwide. In the United Kingdom too, this exception was removed following a judicial verdict in 1991. India is among the few countries in the world to retain this provision with the others in the immediate neighbourhood being Afghanistan, China, Bangladesh, Maldives, Myanmar and Sri Lanka.
Also read: Not criminalising marital rape is hurting women
The Karnataka case
The issue before the high court arose in a petition filed by the husband, Hrishikesh Sahoo, who was married to the complainant wife in 2006 and had a child from the wedlock. Within years of marriage, the relationship got strained as he was accused of causing physical and mental torture to the wife and the child. In the year 2017, the wife lodged a case of cruelty (Section 498A IPC), criminal intimidation (Section 506 IPC), unnatural sex (Section 377 IPC) and offences under POCSO. After investigation, the charge sheet filed by the police included rape (Section 375) and outraging the modesty of a woman (Section 375 IPC).
The husband challenged the final report presented by the police questioning how the charge of rape could be made out when the law provides an exception to a husband. The complaint demonstrated brutal sexual acts by the husband on the wife and relying upon the same, the court directed the trial to proceed against the husband under Section 375 and 377 of the IPC.
Justice M. Nagaprasanna in his order said, “If the allegation of rape is removed from the block of offences alleged, it would, in the peculiar facts of this case, be doing tremendous injustice to the complainant-wife and would amount to putting a premium on the carnal desires of the petitioner.”
The court was of the view that the exemption granted to a husband in the commission of rape cannot be "absolute" and cannot become a license for the commission of crime against society. However, it clarified that it was not pronouncing upon the validity of retaining marital rape in the penal code as that was a matter for the legislature to consider.
The Split Verdict
The first direct challenge to the marital rape exception under the IPC came up before the Delhi High Court in a clutch of PILs.The petitions raised a constitutional question rather than arising from an individual case, unlike the Karnataka matter. The petitions stated that the provision creates an unconstitutional classification among victims of rape, with a married woman failing to receive the protection an unmarried woman can avail.
Justice Rajeev Shakdher held Exception 2 to Section 375 to be unconstitutional, as in his view the provision creates an unreasonable classification that criminalises forced sex outside marriage as rape while failing to hold the same act as an offence within marriage.
Taking a contrary view, Justice C. Hari Shankar dismissed the challenge to the marital rape exception, holding that the status and importance given to a marital relationship is unique and epitomises the most sublime relationship between a man and a woman.
Also read: The case for a law against marital rape
Government’s justification
The first opportunity for the Parliament to review the marital rape exception came following the Nirbhaya gangrape case when a committee under former CJI (Retd.) J.S. Verma submitted a slew of reforms regarding sexual crimes against women. The Department-Related Standing Committee on Home Affairs, in its report to Parliament on the proposed amendments, said that in India, the family system has evolved over ages, moving forward with the capacity to resolve marital conflicts internally.
On marital rape, it said, “There is also a provision under the law for cruelty against women (Section 498A) and in case marital rape is brought under law, it may have the potential to destroy the institution of marriage and the entire family system will be under great stress. Broken families would further lead to insecurity among women of these families."
This justification became the basis for the Parliament to retain this exception under the BNS as well.
In the Supreme Court, the Centre filed a response in October 2024 in the Hrishikesh Sahoo matter (Karnataka High Court case) defending its stand on retaining the marital rape exception. It said, “Given the nature of the marital institution in our socio-legal milieu, if the legislature is of the view that, for preservation of the marital institution, the impugned Exception should be retained, it is submitted that it would not be appropriate for this court to strike down the Exception.” This response has been adopted by the Centre for answering all petitions pending before the top court.
The Centre said that the law recognises conjugal relations within the institution of marriage while describing the issue at hand as a “delicate and sensitive societal issue”. It urged the court not to adopt a strictly legal approach, as striking down the Exception would have a “far-reaching effect” on the institution of marriage. It further urged the judiciary to steer clear of deciding the criminalisation or decriminalisation of any act, as it essentially forms part of the plenary legislative policy of the country and depends on various socio-economic and political factors, which often fall outside judicially manageable standards.
With the matter now before the top court, a debate on all these issues is inevitable. In the past, the court has upheld the bodily integrity and privacy of women and decriminalised adultery while observing that a “woman” is not a “chattel” or “property” of her husband, holding such laws to be against the dignity of women. The issue demands a resolution amid the prevailing confusion over its uncertain future.