The Supreme Court of India is set to deliberate on Tuesday over the contentious legal issue of whether husbands should be granted immunity from prosecution for raping their wives, provided the wives are not minors. This hearing is a part of a broader examination of laws that currently shield spouses from such charges under certain conditions.
The matter will be heard by a bench led by Chief Justice D.Y. Chandrachud and Justice J.B. Pardiwala, following the completion of some ongoing cases. Senior advocates Karuna Nundy and Indira Jaising have been actively involved, representing litigants and pressing for an urgent review of these laws.
Previously, under the exception clause of Section 375 of the Indian Penal Code (IPC), repealed and replaced by the Bharatiya Nyaya Sanhita (BNS), sexual acts between a man and his wife were not considered rape if the wife was not a minor. Even with new legal texts, such as the BNS, the exception persists, notably in Exception 2 to Section 63, stating that sexual intercourse with one’s wife, unless she is under eighteen, does not constitute rape.
This legal provision has faced significant scrutiny and criticism. On January 16, 2023, the Supreme Court requested a response from the Centre on multiple petitions challenging this protection for husbands. Additionally, on May 17, it issued a notice regarding a similar challenge to the BNS.
The issue gained momentum following a split verdict from the Delhi High Court on May 11, 2022, which led to a certificate of leave to appeal in the Supreme Court, recognizing the substantial legal questions involved. Justice Rajiv Shakdher advocated for the removal of the marital rape exception, deeming it unconstitutional, while Justice C. Hari Shankar provided a contrasting opinion, suggesting that the exception was based on “an intelligible differentia” that justified different treatment under the law.
Moreover, the Karnataka High Court on March 23 last year ruled that exempting a husband from rape charges within marriage contradicted the equality principle under Article 14 of the Constitution. This verdict has paved the way for the prosecution of a man accused of raping his wife, further intensifying the legal debates surrounding this issue.
