The Supreme Court is likely to hear on Wednesday (October 16, 2024) a batch of petitions challenging the constitutional validity of Exception 2 to Section 375 of the Indian Penal Code, 1860 (IPC). The challenge also extends, by implication, to Exception 2 of Section 63 of the Bharatiya Nyaya Sanhita, 2023, which supersedes the former provision. These provisions grant legal immunity to Indian husbands by stipulating that “sexual intercourse or acts by a man with his wife, provided she is not under 18 years of age, do not constitute rape”.
Earlier on September 18, Chief Justice D.Y.Chandrachud said if the Union government did not want to file a response to the petitions seeking the criminalisation of marital rape then it would have to present oral arguments on the tenets of the law when the case comes up for hearing in the apex court.
Subsequently, the Centre filed an affidavit in the top court defending the marital rape exception. It argued that the criminalisation of marital rape would impact conjugal relationships and lead to “serious disturbances” in the institution of marriage.
“In an institution of marriage, there exists a continuing expectation, by either of the spouse, to have reasonable sexual access from the other. Though these expectations do not entitle the husband to coerce or force his wife into sex, against her or his will, they constitute a sufficient basis for the legislature to distinguish qualitatively between an incident of non-consensual sex within the marital sphere and without it,” the affidavit filed through the Ministry of Home Affairs reasoned.
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