Supreme Court to hear batch of petitions pertaining to criminalisation of marital rape on May 9

The Delhi High Court on May 11, 2022 had delivered a split verdict on the criminalisation of marital rape

Illustration: Deepak Harichandan

The Supreme Court on March 22 agreed to hear on May 9 a series of petitions seeking to criminalise marital rape.

A three-judge Bench led by Chief Justice of India D.Y. Chandrachud heard an oral mentioning by senior advocate Indira Jaising for early listing of the case.

The Centre, represented by Solicitor General Tushar Mehta, said it would take a day-and-a-half to present its arguments.

Mr. Mehta had earlier said the case not only had legal ramifications but also widespread social impact.

The Karnataka High Court had earlier held that a husband was liable to be charged for rape under the Indian Penal Code (IPC) if he has forcible sex with his wife. The Karnataka Government had supported the High Court judgment in an affidavit in the apex court subsequently.

Exception two to Section 375 of the IPC decriminalises marital rape and holds that sexual intercourse by a man with his own wife, who is not under 18, without her consent is not rape.

“A man is a man; an act is an act; rape is a rape, be it performed by a man the ‘husband’ on the woman ‘wife’,” the Karnataka High Court had observed in its decision, saying an accused should trial regardless of the immunity in the penal code.

A Division Bench of the Delhi High Court had in May 2022 delivered a split verdict in a separate case on the identical issue. Justice Rajiv Shakdher, who headed the two-judge Bench, struck down as unconstitutional the Exception two to Section 375 of the Indian Penal Code (IPC). 

However, Justice C. Hari Shankar, the Associate Judge on the High Court Bench, had rejected the plea to criminalise marital rape, noting that any change in the law should be carried out by the legislature since the issue required consideration of various aspects, including social, cultural and legal.

Mr. Mehta asked Chief Justice Chandrachud whether the apex court should wait till a three-judge Bench of the Delhi High Court delivered its decision in the case. But the CJI said the apex court already had the benefit of the crystallised views of two judges and would go forward and hear the petitions.

The Karnataka Government has referred to the report of the Justice J.S. Verma Committee of 2013 which had recommended the removal of the exception for marital rape and proposed that the law should specify that “marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation”. 

The petitioners, including one by activist Ruth Manorama, had argued that the Exception undermined women’s consent to sex and violated bodily integrity, autonomy and dignity.