Criminalising marital rape will have ramifications: Govt tells Supreme Court

By, New Delhi
Sep 23, 2023 05:26 AM IST

The court is seized of a batch of petitions which exempts forceful sexual intercourse by a man with his wife from the offence of rape.

The issue of criminalising marital rape would have “social ramifications”, the Union government told the Supreme Court on Friday even as the petitioners in the case pressed for an early hearing of the matter awaiting adjudication for over a year now.

The case was mentioned before Chief Justice of India (CJI) Dhananjaya Y Chandrachud by advocate Karuna Nundy, seeking a date of listing (Sonu Mehta/HT)
The case was mentioned before Chief Justice of India (CJI) Dhananjaya Y Chandrachud by advocate Karuna Nundy, seeking a date of listing (Sonu Mehta/HT)

The case was mentioned before Chief Justice of India (CJI) Dhananjaya Y Chandrachud by advocate Karuna Nundy, seeking a date of listing. The CJI responded that the court can hear the matter after the benches led by him wrap up a bunch of Constitution bench cases. “We will list it in mid-October and see what the status of Constitution benches by that time is,” he added.

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Requesting the CJI to give the Centre two days to argue the matter as and when it is listed, solicitor general Tushar Mehta said: “This will have social ramifications.” Nundy said that the petitioners will need three days for their submissions.

READ | Court grants abortion rights for marital rape

In July, the Supreme Court had observed that the petitions regarding the validity of the immunity to husband from marital rape “have to be decided”, agreeing to list the matter after hearing in the Constitution bench matter relating to abrogation of Article 370 gets over in August. However, a bundle of fresh Constitution bench matters was listed by the CJI after the conclusion of the Article 370 hearing, delaying the marital rape case further.

The court is seized of a batch of petitions that relate to the exception to section 375 of the Indian Penal Code, which exempts forceful sexual intercourse by a man with his own wife from the offence of rape.

While a set of public interest litigation (PILs) have challenged the validity of the immunity clause in the IPC on the grounds of discrimination against married women who were sexually assaulted by their husbands, the split verdict by the Delhi high court in May 2022 is also pending before the top court for a final word.

READ | When two views on marital rape divided the Delhi High Court

The judges of the Delhi high court disagreed with each other in their 2022 judgment with one HC judge terming the clause protecting husbands from prosecution for non-consensual sex with their wives as “morally repugnant”, while the other said it did not violate any law and could continue to exist.

One petition before the Supreme Court is an appeal by a man whose trial for raping his wife was approved by the Karnataka high court in a March 2022 ruling. In this matter, the then Bharatiya Janata Party-ruled Karnataka government filed its affidavit in November last year, supporting the criminal prosecution of the husband. The Basavaraj Bommai-government had at the time claimed that the IPC permits the prosecution of a man for raping his wife and therefore, a husband’s trial under section 375 of IPC is valid.

By an order on January 16, the court appointed advocates Pooja Dhar and Jaikriti S Jadeja as nodal counsel in the matter to prepare a common compilation and collaborate with all the lawyers in the matter to facilitate the proceedings.

On that day too, S-G Mehta flagged concerns over the social impact of the issue, which is why, he said, the Centre has commenced the process of consultation with states and other stakeholders. The Centre, however, is yet to file its affidavit in the matter to bring on record its final stand.

Interestingly, while delivering a judgment in a case related to the medical termination of pregnancy, the Supreme Court said in September 2022 that the pregnancy of a married woman due to forcible sex by her husband can be treated as rape under the Medical Termination of Pregnancy Act, in what was the first legal recognition of “marital rape” under an Indian statute.

In 2017, the top court interfered with Exception 2 of Section 375, but only to the extent that it protected husbands from prosecution under the rape charge if the wife was not below 15 years. The Supreme Court read down the exception clause to hold that a wife must not be below 18 for the immunity to operate.

At the same time, it clarified that no opinion was being rendered on the issue of marital rape. “We make it clear that we have refrained from making any observation about the marital rape of a woman, who is 18 years of age and above, since that issue is not before us at all. Therefore, we should not be understood to advert to that issue even collaterally,” said the 2017 judgment.

The 172nd report of the Law Commission of India on “Review of Rape Laws” in March 2000 said it would not recommend deletion of the exception clause in Section 375 “since that may amount to excessive interference with the marital relationship”.

However, the justice JS Verma committee, which was set up to propose amendments in criminal laws in the wake of the gang rape of a paramedical student in December 2012, made a contrary recommendation. The committee received around 80,000 suggestions and finalised its 644-page report in 2013, proposing that “the exception for marital rape be removed” and the law must “specify that a marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation”.

The committee recommended the criminalisation of marital rape since the state of being married does not generate automatic consent to sexual acts. While a raft of other recommendations made by this panel were accepted and the criminal law was amended in 2013, the exhortation on marital rape was not heeded to by the government.

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