The Supreme Court will hear next week, a batch of petitions challenging the constitutionality of the marital rape exception under Section 375 IPC (rape) on the ground that it discriminated against married women, who were sexually assaulted by their husbands.
The Bench of Chief Justice D Y Chandrachud, Justice J B Pardiwala and Justice Manoj Misra on Monday took note of the submissions of Senior Advocate Karuna Nandy, appearing for one of the parties, that the petitions on the issue of marital rape be heard.
Noting that the Bench would be busy this week in dealing with a batch of matters on taxation laws, the CJI said that the matter would be heard next week. He indicated that the Apex Court may take up the pleas on July 18.
Senior Advocate Indira Jaising, appearing for one of the parties, had mentioned the petitions on July 16, seeking some priority for them.
Under the exception clause of Section 375 of the Indian Penal Code, now repealed and replaced by the Bhartiya Nyaya Sanhita, sexual intercourse or sexual acts by a man with his wife, the wife not being minor, do not come under the category of rape.
Even under the new law, exception 2 to Section 63 (rape) says that “sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape”.
The Apex Court issued notice to the Centre on January 16, 2023, seeking its response on a clutch of petitions assailing the IPC provision providing protection to a husband against prosecution for forcible sexual intercourse, in case the wife was an adult.
On May 17, the top court of the country issued notice to the Centre on a similar plea challenging the BNS provision on the issue.
The newly enacted laws – the Bharatiya Nyaya Sanhita, the Bharatiya Nagarik Suraksha Sanhita (BNSS) and the Bharatiya Sakshya Adhiniyam – came into effect from July 1, replacing the IPC, CrPC and the Evidence Act.
The Centre had earlier said the issue has legal as well as social implications, and the government would like to file its response to the petitions.
One of the pleas is related to the Delhi High Court’s split verdict of May 11, 2022, on the issue. The appeal has been filed by a woman, who was one of the petitioners before the Delhi High Court.
While delivering a split judgement, the Division Bench of Justice Rajiv Shakdher and Justice C Hari Shankar had concurred on granting the petitioners certificate of leave to appeal in the Supreme Court as the matter involved substantial questions of law which required a decision by the top court.
Justice Shakdher favoured striking down the marital rape exception for being unconstitutional and said it would be ‘tragic’ if a married woman’s call for justice was not heard even after 162 years since the enactment of the IPC.
Justice Shankar said the exception under the rape law was not unconstitutional and was based on an intelligible differentia.
The concept of intelligible differentia distinguishes people or things grouped together from those that are left out.
Another plea has been filed by a man against the Karnataka High Court verdict, which paved the way for his prosecution for allegedly raping his wife.
On March 23, 2023, the Karnataka High Court had observed that exempting a husband from the allegations of rape and unnatural sex with his wife ran against Article 14 (equality before law) of the Constitution.
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