The Supreme Court on Friday, September 16, 2022, sought a response from the government on appeals to criminalise marital rape.
A Bench led by Justice Ajay Rastogi indicated that several similar petitions were also pending in the apex court and they would be listed together for hearing in February next year.
The appeals follow a split decision from the Delhi High Court on whether or not to prosecute husbands for non-consensual sex with their wives.
During the brief hearing, All India Democratic Women's Association, represented by advocate Karuna Nundy, said both judges in the Bench in the Delhi High Court had agreed that the case raised a substantial question of law which required an authoritative ruling from the Supreme Court.
The issue focuses on the exception in rape law in the Indian Penal Code which dismisses the idea of rape within marriage. The questions raised include whether or not a married woman has bodily autonomy. In short, whether a husband should accept that his wife's "no means no", and any transgression would amount to rape.
Justice Rajeev Shakdher, the lead judge on the Delhi High Court Bench which delivered a split opinion in May, had favoured striking down the marital rape exception for being "unconstitutional". He had said it would be "tragic if a married woman's call for justice is not heard even after 162 years" since the enactment of the IPC.
‘Intelligible differentia’
Justice C. Hari Shankar, the other judge on the HC Bench, had however disagreed and said the exception under the rape law was based on an "intelligible differentia".
The petitioners had challenged the constitutionality of the marital rape exception under Section 375 IPC (rape) on grounds that it discriminated against married women who are sexually assaulted by their husbands.
Under the exception given in Section 375 of the IPC, sexual intercourse or sexual acts by a man with his wife, the wife not being minor, is not rape.
