New Delhi, Aug 05
The Supreme Court will hear next week petitions seeking to criminalise marital rape.
Currently, a man enjoys immunity from prosecution for rape, if he forces his wife, who is not a minor, to have sex.
A Bench led by Chief Justice of India DY Chandrachud on Monday assured senior advocate Karuna Nandy that the matter would be taken up next week after she urged the CJI to list it for hearing, as it would deal with petitions on taxation laws this week.
Nine NDA-ruled states and the union territory of Jammu and Kashmir have moved the Supreme Court seeking to be heard on the contentious issue.
The states of Gujarat, Madhya Pradesh, Uttarakhand, Assam, Rajasthan, Manipur, Uttar Pradesh, Chhattisgarh and Maharashtra and the UT of Jammu and Kashmir have filed separate intervention applications in the matter. Once the top court allows their intervention applications, the states and the UT in question will become parties to the case, enabling them to present their respective stand on the contentious issue.
Section 375 of the now repealed Indian Penal Code (IPC) defined rape as sexual intercourse without consent and against the will of a woman. But Exception 2 to Section 375 says sexual intercourse by a man with his wife, who is 15 or above, is not rape even if it is without her consent and against her will.
The top court had on January 16, 2023 sought the Centre’s response on petitions challenging Exception 2 to Section 375.
As the Bharatiya Nyaya Sanhita (BNS) – which replaced the colonial era IPC on July 1 – fails to criminalise marital rape, a PIL in the Supreme Court has challenged the validity of the provision that treats marital rape as an exception to rape.
Acting on a petition filed by All India Democratic Women’s Association (AIDWA) seeking to criminalise marital rape, a Bench led by CJI Chandrachud had on May 17 asked the Centre to spell out its stand on the contentious issue.
AIDWA contended that the marital rape exception went against Article 19(1)(a) (right to freedom of speech and expression) and Article 21 (right to life and liberty) of the Constitution as it took away a married woman’s rights to bodily integrity, decisional autonomy, and dignity.
Under BNS too, 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 eighteen years of age, is not rape”.
Besides Exception 2 to section 63 of the BNS, AIDWA also challenged the constitutionality of section 67 of the BNS, which prescribes imprisonment ranging from two to seven years for married men who rape their separated wives, contending the penalty was lower than the mandatory minimum 10-year sentence otherwise applicable in cases of rape.
There are three sets of petitions already pending in the SC on the issue. The first one is by a Karnataka man who is being tried for marital rape. The top court had on July 20, 2022 stayed the verdict of the Karnataka high court that put the man on trial for allegedly raping his wife ignoring Exception 2 to Section 375 IPC that treated such cases as an exception to rape.
The second set of petitions arose out of appeals filed against a split verdict delivered by the Delhi High Court on May 11, 2022 on petitions seeking to criminalise marital rape.
The third set of petitions included PILs challenging the constitutional validity of Exception 2 to Section 375 of the IPC that treated such cases as an exception to the main provision on rape.
In October 2017, the SC ruled that sex with one’s minor wife would amount to rape as it read down the exception to Section 375 of the IPC which said sexual intercourse by a man with his wife not under the age of 15 would not amount to rape.
Recognising the concept of marital rape for the purpose of abortion, the Supreme Court on September 29, 2022 said a woman becoming pregnant as a result of non-consensual sexual intercourse performed upon her by her husband was entitled to seek medical termination of such pregnancy.
