GG News Bureau
New Delhi, 5th August. The Supreme Court will next week hear a series of pleas challenging the legal exception that shields husbands from prosecution for marital rape when their wives are adults. The issue has been the subject of intense debate and legal scrutiny.
On Monday, a bench comprising Chief Justice D Y Chandrachud, Justice J B Pardiwala, and Justice Manoj Misra acknowledged the importance of the petitions, with senior advocate Karuna Nandy urging the court to prioritize the matter. The Chief Justice indicated that hearings would commence next week, noting that the court is currently occupied with matters related to taxation laws.
The petitions question the constitutionality of the exception clause in Section 375 of the Indian Penal Code (IPC), which has been replaced by the Bhartiya Nyaya Sanhita (BNS). Under both the IPC and the new BNS, sexual intercourse by a man with his wife, provided she is not a minor, is not classified as rape.
The Supreme Court had previously sought the Centre’s response on January 16, 2023, regarding the IPC provision that grants immunity to husbands against prosecution for non-consensual sex with their adult wives. On May 17, 2023, the court also issued notice to the Centre concerning the new BNS provision.
The newly enacted Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam, which replaced the IPC, CrPC, and the Evidence Act, took effect from July 1, 2023. Exception 2 to Section 63 of the BNS continues to provide immunity for marital rape if the wife is above eighteen years of age.
The Supreme Court’s attention to this issue follows a split verdict from the Delhi High Court on May 11, 2022. The Delhi High Court’s division bench, led by Justice Rajiv Shakdher, had favored striking down the marital rape exception as unconstitutional, asserting that denying justice to married women is a grave injustice. Justice C Hari Shankar, however, upheld the exception as not unconstitutional, citing “intelligible differentia.”
Additionally, a plea has been filed challenging a Karnataka High Court ruling that permitted the prosecution of a man for allegedly raping his wife. The Karnataka High Court’s decision, rendered on March 23, 2023, argued that exempting husbands from rape allegations violates Article 14 of the Constitution, which guarantees equality before the law.
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