Supreme Court indicates hearing on marital rape pleas would commence on August 13
The petitions relate to the exception in Section 375 of the Indian Penal Code (IPC) exempting forcible sexual intercourse by a man with his wife from the offence of rape
The Supreme Court on Monday indicated that the hearing on petitions regarding the immunity of husbands from marital rape would commence on August 13. The case has not been effectively heard since January 2023.
Chief Justice of India (CJI) Dhananjaya Y Chandrachud, who heads the bench in the matter, said the hearing is most likely to begin on August 13 for final arguments. The CJI’s statement came after senior counsel Indira Jaising and Karuna Nundy mentioned the matter.
The court is seized of a batch of petitions that relate to the exception in Section 375 of the Indian Penal Code (IPC) exempting forcible sexual intercourse by a man with his wife from the offence of rape.
A set of public interest litigation (PILs) have challenged the validity of the immunity clause on the grounds of discrimination against married women sexually assaulted by their husbands. The Delhi high court’s split verdict in May 2022 is also pending before the top court for a final word.
The judges of the high court disagreed with each other in their 2022 judgment with one of them terming the clause protecting husbands from prosecution for non-consensual sex with their wives as “morally repugnant”. 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. The top court in July 2022 stayed the trial in this case.
Karnataka’s then Bharatiya Janata Party (BJP) government filed its affidavit in November last year, supporting the criminal prosecution of the husband. It said that the IPC permits the prosecution of a man for raping his wife and therefore, a husband’s trial under section 375 is valid. The new government in Karnataka has so far not clarified whether it abides by the stand of the BJP government.
In January 2023, the Supreme 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. The Union government then told the court that making marital rape a criminal offence would have “social ramifications”, which is why it has commenced the process of consultation with states and other stakeholders.
Solicitor general Tushar Mehta maintained during the proceedings last year that the subject cannot be looked at only through the prism of legalities and that its social impact must also be considered. The Centre is yet to file its affidavit to bring on record its final stand.
While delivering a judgment in a case related to the medical termination of pregnancy, the Supreme Court said in September 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.