Chief Justice of India (CJI) Dhananjaya Y Chandrachud on Wednesday decided to let a different bench handle the contentious issue of the criminalisation of marital rape after his retirement on November 10, concluding that there would not be enough time to complete the hearings and issue a judgment before his departure. The CJI deferred the case by four weeks, which means that the matter will now be taken up by a new bench after his retirement.
The case has generated intense legal and societal debate, focussing on the constitutionality of the exemption that shields husbands from prosecution for rape within marriage under Section 375 of the Indian Penal Code (IPC). The Bharatiya Nyaya Sanhita (BNS) -- the new law that replaced the IPC with effect from July 1 – contains a similar immunity provision for husbands.
After a hiatus of more than a year, the CJI, presiding over a bench that included justices JB Pardiwala and Manoj Misra had on October 17 opened the final hearing in the case, signalling that a decision would be rendered by November 10, which is justice Chandrachud’s last day in office.
During the proceedings on Wednesday, CJI Chandrachud sought an estimate from the lawyers on both sides regarding how much additional time they would require to present their arguments. Senior counsel Indira Jaising and Gopal Sankaranarayanan, representing the side that opposes the marital rape exception, indicated that they needed at least two more days to finish their submissions. Jaising and her co-counsel argue that the marital rape exception violates the fundamental rights of married women and is an arbitrary distinction within the law.
On the other side, solicitor general Tushar Mehta, representing the Union government, requested a full day for arguments, emphasizing that the issue involves a complex array of considerations that impact not only the legal framework but also the institution of marriage itself. “The ramifications are huge. We are not saying that sexual intercourse can be done without consent, but it’s a polycentric problem and this court will have to examine a series of issues,” asserted Mehta, stressing the multi-dimensional implications of the case.
{{/usCountry}}On the other side, solicitor general Tushar Mehta, representing the Union government, requested a full day for arguments, emphasizing that the issue involves a complex array of considerations that impact not only the legal framework but also the institution of marriage itself. “The ramifications are huge. We are not saying that sexual intercourse can be done without consent, but it’s a polycentric problem and this court will have to examine a series of issues,” asserted Mehta, stressing the multi-dimensional implications of the case.
{{/usCountry}}The law officer’s submissions came amid the central government’s defence of the current law. The government has maintained that criminalisation should remain a legislative prerogative, underlining the complex socioeconomic factors involved and warning of possible impacts on marriage.
Similarly, senior counsel Rakesh Dwivedi, representing the Maharashtra government, echoed the SG’s sentiments and suggested that the case be deferred due to the limited time available before CJI Chandrachud’s retirement. He respectfully urged: “This matter may not finish in the near future,” indicating that the arguments were too substantial to conclude within the CJI’s remaining tenure.
Agreeing with this assessment, CJI Chandrachud expressed that, given the upcoming Diwali break, if the arguments were not concluded within the week, there wouldn’t be enough time left for the bench to draft and deliver a judgment. The court will be closed between October 28 to November 2 for Diwali.
Consequently, the bench recorded in its order that the hearing could not conclude “in the foreseeable future” and adjourned the case for four weeks, to be handled by a new bench.
On her part, senior counsel Karuna Nundy, appearing for the lead petitioners in the case, urged the CJI to consider completing the case, stating: “Your legacy would come full circle with a judgment in this case.” However, SG Mehta countered by saying, “Your lordship’s legacy will live on. It is certainly not dependent on any one matter.”
The adjournment means that the question of whether marital rape will be criminalised remains unresolved for now. The outcome will hinge on the timeline of the setting up of a new bench and how the new bench navigates the legal complexities amid the Centre’s firm opposition to changing the law.
The top court is seized of a batch of petitions challenging the constitutionality of Exception 2 under Section 375 of IPC, which exempts a husband from being prosecuted for raping his wife. A bundle of public interest litigations (PILs) has contended that the exception is discriminatory against married women who are sexually assaulted by their spouses.
Nundy, who opened the petitioners’ final arguments on October 17, emphasised that the exception causes harm similar to rape by a stranger, challenging the rationale behind maintaining the exemption for marital rape. The petitioners have also drawn on international perspectives to support their case, noting that many countries have already criminalized marital rape and treat non-consensual sex within marriage as a violation of human rights.
During the October 17 proceedings, the top court questioned the broader implications of criminalising marital rape on marriage as an institution.
The issue before the top court also includes the Delhi high court’s split verdict of May 2022, which remains pending for the Supreme Court’s final judgment. In that verdict, one judge declared the marital rape exception as “morally repugnant”, while the other judge ruled that the exception was valid and could continue to exist without violating the law.
Among the pending cases is an appeal by a man whose trial for raping his wife was upheld by the Karnataka High Court in March 2022. The Supreme Court stayed this trial in July 2022. The then BJP-led Karnataka government filed an affidavit in November 2022, supporting the prosecution of the husband, stating that the IPC allows for the criminal trial of a husband for raping his wife. The new government in Karnataka has also stuck to this stand.
On October 3, the Centre filed its affidavit defending the marital rape exception on the grounds that removing it would destroy the institution of marriage, even as it asked the court to respect the legislature’s wisdom in retaining the exception, arguing that Parliament has done so after understanding complex socio-economic and cultural aspects. It also warned of the possible misuse of the law were the exception to be removed.
The affidavit asserted that while a husband has no “fundamental right” to violate the consent of his wife, invoking stringent penal provisions of rape in matrimonial relationships would be “excessively harsh” and “disproportionate”, besides having “far-reaching socio-legal implications” on the institution of marriage.
Filed through the ministry of home affairs (MHA), the affidavit said that while consent is foundational, breaches of this consent in marriage should be dealt with through less severe penalties, such as provisions relating to sexual assault, use of criminal force, cruelty and domestic violence, rather than the“ghastly” provisions applied to cases involving strangers.
The Centre conceded that both parties in a marriage have rights to privacy and dignity even as it added that invoking Section 375/376 of the IPC (rape charges) in matrimonial settings “would necessarily entail consequences” that do not reflect the nuanced reality of conjugal relationships. It further stated that Parliament has adequately balanced these rights by enacting alternative provisions because applying the harsh label of “rape” to marital settings could potentially destabilise the institution itself.