Supreme Court to decide on marital rape law, if Centre choses not to file reply

New Delhi: The Supreme Court on Wednesday said that it will decide the legality of the immunity granted to husbands from prosecution for marital rape solely on legal principles, even if the Union government choses not to file an affidavit into the matter. 

"It is a matter of law. They will have to argue on the point of law if they have chosen not to file an affidavit,” a bench presided over by Chief Justice of India Dhananjaya Y Chandrachud said as a counsel mentioned the matter saying the Centre has yet not filed its response despite several opportunities.

The bench clarified that it would decide the question of law in the matter as senior advocate Indira Jaising requested for early hearing of the matter.

The matter was listed before the court but it could not be taken due to a pending part heard case.

In January 2023, the apex court had sought Centre’s reply on pleas related to criminalisation of marital rape and the provision of the IPC, which provide protection to a husband against prosecution for forcible sexual intercourse if the wife is an adult. 

The Centre had said that this issue has social implications. However, it had then said it would file its reply. 

Notably, in November, 2022, the Karnataka government has supported before the top court the March 23, 2022 judgement of the High Court which had declined to quash the charges of rape framed under Section 376 of the Indian Penal Code (IPC) against a man accused of raping his wife, despite the exception to the husband. 

Earlier, the Delhi High Court had on May 11, 2022 given a split verdict with regard to exception for husbands for sexual assault under the penal law.