Supreme Court to Hear Pleas on Marital Rape Criminalization
The Supreme Court of India is set to begin hearings on a series of petitions advocating for the criminalization of marital rape. A bench led by Chief Justice of India Surya Kant, alongside Justice Joymalya Bagchi and Justice V Mohana, announced that the case will be scheduled for final hearings after three weeks, specifically on Wednesdays and Thursdays.
This decision follows the submission of an affidavit by the Central government. The court instructed that a copy of this affidavit be provided to all involved counsel within two days. Furthermore, the nodal counsel for the petitioners is tasked with compiling the necessary pleadings and documents, while the respondents must prepare and exchange their own compilations and citations. The matters are to be listed for final hearing after three days on a Wednesday and Thursday.
Legal and Constitutional Questions
A significant point of the hearing was the court’s acknowledgment that marriage should not negate the individual autonomy of a woman. However, it also noted the existing statutory exemption under the Bharatiya Nyaya Sanhita (BNS), which must be considered before allowing prosecution for marital rape.
Justice Joymalya Bagchi emphasized the need for a constitutional court to determine whether the marital rape exception is unreasonable or manifestly arbitrary before any prosecution can proceed. The court plans to explore two primary issues: the sustainability of a prosecution if the marital rape exception remains, and the constitutional validity of the exception itself. This includes examining the potential outcomes of redefining the exception and whether an act specifically excluded from the offense can still be interpreted as such.
Context of Marital Rape Legislation
Currently, marital rape is not considered a criminal act under Exception 2 to Section 375 of the Indian Penal Code (IPC), and similar provisions exist in the newly enacted Bharatiya Nyaya Sanhita (BNS), which replaced the IPC in 2023. The Central government supports the existing law, arguing that the issue is more social than legal.
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In 2022, the Delhi High Court delivered a divided verdict on the matter. Justice Rajiv Shakdher declared the exception unconstitutional, while Justice C Hari Shankar upheld it, citing a legislative distinction based on intelligible differentia. The matter was subsequently elevated to the Supreme Court in September of that year.
Senior Advocate Karuna Nundy, among others, is representing the petitioners in this landmark case, which continues to draw significant attention and debate across the country.
