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Marital rape petitions to be listed next month: SC
The Supreme Court has agreed to list petitions regarding the validity of immunity for husbands from marital rape after the Constitution bench hearing on Article 370 concludes in August. The matter has not been heard since January. The court is seized of a batch of petitions challenging the exemption of forceful sexual intercourse by a man with his wife from the offence of rape. The split verdict by the Delhi high court in May 2022 is also pending before the top court for a final decision.
The Supreme Court on Wednesday observed that the petitions regarding the validity of the immunity to husband from marital rape “have to be decided”, as it agreed to list the matter after hearing in the Constitution bench matter relating to abrogation of Article 370 gets over in August.
“The petitions of marital rape have to be decided... We can take it up after the Constitution bench hearing on Article 370 gets over next month,” Chief Justice of India Dhananjaya Y Chandrachud told senior counsel Indira Jaising and advocate Karuna Nundy.
A five-judge bench is set to begin day-to-day hearings from August 2 on a clutch of petitions pertaining to the nullification of Article 370 of the Constitution.
The matter was mentioned by senior advocate Indira Jaising who claimed that the matter has not come up for hearing since January. Nundy, who is appearing for one of the petitioners in the case, submitted that the point in the marital rape case is a very short one and that the lawyers on her side have already zeroed in on the issues and the duration they need to argue for.
While Jaising would address the court on the law as it presently stands, Nundy said, she would argue on constitutionality. In response, the CJI agreed to list the matter.
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 litigations (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.
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 saying 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 Bharatiya Janata Party-ruled Karnataka government filed its affidavit in November last year, supporting the criminal prosecution of the husband. The Basavaraj Bommai-government 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, the Union government 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 on January 16 that the subject cannot be looked at only through the prism of legalities and that its social impact will also have to be taken into account. The Centre, however, is yet to file its affidavit in the matter to bring on record its final stand.
