Supreme Court to Hear Marital Rape Case Amid Centre’s Silence

The Supreme Court is set to hear a batch of petitions on Tuesday seeking the criminalization of marital rape. These petitions, pending since last year, question the legality of the immunity granted to husbands from prosecution in cases of marital rape. A bench consisting of Chief Justice DY Chandrachud and Justice JB Pardiwala will preside over the hearing.

Last week, the Supreme Court announced that it would decide the matter based on legal principles after noting that the Centre had not filed an affidavit to clarify its position on the issue. However, the court also stated that the Centre must present oral arguments regarding the law during the hearing. “It is a matter of law. They (the Centre) will have to argue on the point of law if they have chosen not to file an affidavit,” said the bench led by Chief Justice Chandrachud.

This remark came after a lawyer representing the petitioners pointed out that despite multiple opportunities, the Centre had failed to file an affidavit on the matter.

Under the erstwhile Indian Penal Code (IPC), Section 375 contained an exception clause that allowed a husband to have non-consensual sexual intercourse with his wife, provided she was over 15 years old, without it being considered rape.

The Bharatiya Nyaya Sanhita (BNS), which replaced the IPC in July 2024, retained this exception under Section 63 but raised the woman’s age from 15 to 18.

The Supreme Court had first sought the Centre’s response on marital rape on January 16, 2023. At the time, the Centre stated that the issue had both legal and social implications.

The issue gained further attention after contradictory rulings from the Karnataka and Delhi High Courts.

In May 2022, a division bench of the Delhi High Court delivered a split judgment on the criminalization of marital rape. Justice Rajiv Shakdher declared the provision unconstitutional, while Justice C Hari Shankar upheld it, arguing that changes in the law fall within the domain of the legislature.

In March 2023, the Karnataka High Court ruled that exempting a husband from allegations of rape and unnatural sexual relations with his wife violated Article 14 (equality before the law) of the Constitution.