Marital rape: SC to list pleas against penal laws granting immunity to husbands from prosecution

New Delhi: The Supreme Court on Tuesday agreed to list for hearing the pleas on the vexed legal question of whether a husband should enjoy immunity from prosecution for the offence of rape if he forces his wife, who is not a minor, to have sex.

A bench comprising Chief Justice D Y Chandrachud and Justices JB Pardiwala and Manoj Misra took note of the submissions of senior advocate Indira Jaising, appearing for one of the parties, that the petitions be accorded "some priority".

The CJI said the pleas will be heard and indicated that they might be taken up on July 18.

Under the exception clause of Section 375 of the Indian Penal Code, now repealed and replaced by the Bhartiya Nyaya Sanhita, sexual intercourse or sexual acts by a man with his wife, the wife not being minor, is not rape.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 eighteen years of age, is not rape".

The top court had on January 16, 2023 sought the Centre's response on a clutch of petitions assailing the IPC provision which provides protection to a husband against prosecution for forcible sexual intercourse if the wife is an adult.

Later on May 17, it also 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.

“We have to resolve the matters concerning marital rape,” the bench had said.

Earlier, the Centre had said the issue has legal as well as social implications, and the government would like to file its response to the petitions.

One of 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, HC judges Justice Rajiv Shakdher and Justice C Hari Shankar had concurred on granting the petitioners a 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.

While Justice Shakdher, who headed the division bench, favoured striking down the marital rape exception for being "unconstitutional" and 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, Justice Shankar said the exception under the rape law is 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.

The Karnataka High Court had on March 23 last year said exempting a husband from the allegations of rape and unnatural sex with his wife runs against Article 14 (equality before law) of the Constitution.

The set of pleas are PILs filed against the IPC provision and have challenged the constitutionality of the marital rape exception under Section 375 IPC (rape) on the ground that it discriminates against married women who are sexually assaulted by their husbands.