The Supreme Court of India is set to address the contentious issue of marital rape in its upcoming session next week, a legal debate that questions whether a husband should be exempt from rape charges if he forces his wife, who is not a minor, to engage in sexual acts.
The bench, led by Chief Justice D Y Chandrachud along with Justices J B Pardiwala and Manoj Misra, acknowledged the urgency of the matter following senior advocate Karuna Nandy’s appeal for a prompt hearing on behalf of one of the parties involved.
This legal scrutiny comes amidst a backdrop where current laws under the newly enacted Bharatiya Nyaya Sanhita, which replaced the Indian Penal Code, continue to provide a controversial exemption. According to exception 2 to Section 63 of the law, “sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not considered rape.”
The upcoming hearings stem from a series of petitions challenging this exemption, arguing that it discriminates against married women and is in violation of their rights under Article 14 (equality before law) of the Constitution. One of these petitions originated from a landmark split verdict by the Delhi High Court on May 11, 2022, wherein Justice Rajiv Shakdher advocated for the abolishment of this exemption, deeming it “unconstitutional.”
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Another plea was filed following a Karnataka High Court judgment last year, which enabled the prosecution of a husband accused of raping his wife, highlighting a clash between existing legal provisions and constitutional rights.
The central government has previously indicated the complex legal and social dimensions of this issue, expressing an intention to submit a comprehensive response to the petitions.
