Chief Justice of India D.Y. Chandrachud on September 22 agreed to list by mid-October a series of petitions seeking the criminalisation of marital rape.
“We will list it sometime in mid-October after the Constitution Bench hearings,” Chief Justice Chandrachud addressed senior advocate Indira Jaising and advocate Karuna Nundy, who jointly mentioned the case for urgent listing.
In July, Ms. Nundy had said Ms. Jaising would address the court on the issues in law. Ms. Jaising said her petition also concerned child abuse.
In an earlier hearing, Solicitor General Tushar Mehta, for the Union, had said the case had not only legal ramifications but widespread social impact.
The petitions are largely triggered by decisions from Karnataka and Delhi High Courts, requiring an authoritative pronouncement from the apex court.
The Karnataka High Court had held that a husband was liable to be charged for rape if he had forcible sex with his wife. The Karnataka government had supported the High Court judgment in an affidavit in the apex court subsequently.
Exception two to Section 375 of the IPC decriminalises marital rape and holds that sexual intercourse by a man with his own wife, who is not under 18, without her consent is not rape.
“A man is a man; an act is an act; rape is a rape, be it performed by a man the ‘husband’ on the woman ‘wife’,” the Karnataka High Court had observed in its decision, saying an accused should trial regardless of the immunity in the penal code.
A Division Bench of the Delhi High Court had however in May last year delivered a split verdict in a separate case on the identical issue. Justice Rajiv Shakdher, who headed the two-judge Bench, had struck down as unconstitutional the Exception two to Section 375 of the Indian Penal Code (IPC).
However, Justice C. Hari Shankar, the associate judge on the High Court Bench, had rejected the plea to criminalise marital rape, noting that any change in the law should be carried out by the legislature since the issue required consideration of various aspects, including social, cultural and legal.
Mr. Mehta had asked Chief Justice Chandrachud whether the apex court should wait till a three-judge Bench of the Delhi High Court delivered its decision in the case. But the CJI said the apex court already had the benefit of the crystallised views of two judges and would go forward and hear the petitions.
The Karnataka government has referred to the report of the Justice J.S. Verma Committee of 2013 which had recommended the removal of the exception for marital rape and proposed that the law should specify that “marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation”.
The petitioners, including one by activist Ruth Manorama, had argued that the Exception undermined women’s consent to sex and violated bodily integrity, autonomy and dignity.