Supreme Court to hear petitions relating to criminalisation of marital rape from March 14

The issue focuses on the exception in rape law in the Indian Penal Code which dismisses the idea of rape within marriage

January 16, 2023 11:47 am | Updated 03:39 pm IST - New Delhi

Image for representation purpose only. File

Image for representation purpose only. File | Photo Credit: S. Subramanium

The Supreme Court on Monday said it will begin hearing a series of petitions seeking to criminalise marital rape from March 14.

A three-judge Bench led by Chief Justice of India D.Y. Chandrachud directed the Union of India to file its response in an affidavit. The Centre, represented by Solicitor General Tushar Mehta, said the case has not only legal ramifications but widespread social impact. He said that the Centre has even invited the States to give their views two or three months ago.

Explained | Marital rape in India: The history of the legal exception 

The court asked the government to file its affidavit by on or before February 15. The parties have been asked to file their written submissions of their arguments with case laws by March 3 through advocate Jaikriti Jadeja and another lawyer.

The Karnataka High Court had earlier held that a husband was liable to be charged for rape if the Indian Penal Code (IPC) if he has 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 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, 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 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, has argued that the Exception undermined women’s consent to sex and violated bodily integrity, autonomy and dignity.

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