The Supreme Court on Monday announced that it will determine a schedule for hearing challenges to the marital rape exemption only after receiving the central government’s formal position on the matter.
A three-judge bench presided over by Chief Justice Surya Kant, alongside Justices Joymalya Bagchi and V. Mohana, noted that the batch of petitions is already slated to appear on Wednesday. The bench clarified that it would ascertain the Union government’s stance during that session before deciding on a suitable hearing timeline.
The court’s observation came after senior advocate Indira Jaising, representing a woman petitioner seeking her husband’s prosecution, urged the judges to designate a fixed hearing date in November. Jaising submitted that the Union government had filed only a preliminary objection rather than a substantive counter-affidavit, adding that the respective parties had not yet exchanged petitions to identify shared legal questions. Senior advocate Karuna Nundy, appearing for another petitioner, requested that any future date be set to allow litigants sufficient time to complete formal pleadings.
Challenge To Statutory Protections Under Criminal Law
The litigation challenges the constitutional validity of statutory provisions that protect husbands from rape charges. Under the exception clause of Section 375 of the now-repealed Indian Penal Code, non-consensual sexual acts by a man with his adult wife were exempt from the definition of rape.
This legal immunity has been retained under Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita, which took effect on July 1, 2024, alongside the Bharatiya Nagarik Suraksha Sanhita and the Bharatiya Sakshya Adhiniyam, replacing the colonial-era Indian Penal Code, the Code of Criminal Procedure, and the Indian Evidence Act. The new statutory provision similarly specifies that sexual acts committed by a man with his wife do not constitute rape if she is at least 18 years old.
The Supreme Court initially sought the central government’s response to public interest litigations challenging the Indian Penal Code provision on January 16, 2023, and subsequently issued a separate notice concerning the corresponding section under the Bharatiya Nyaya Sanhita. The petitions argue that granting immunity to husbands creates unconstitutional discrimination against married women subjected to sexual assault.
Conflicting High Court Determinations
Among the matters before the apex court is an appeal stemming from a May 11, 2022, split verdict delivered by the Delhi High Court. The two judges on that bench granted a certificate of leave to appeal to the Supreme Court after concluding that the dispute raised substantial questions of constitutional law.
In that ruling, Justice Rajiv Shakdher favoured striking down the marital rape exception as unconstitutional, observing that it would be tragic if married women were denied justice more than 162 years after the enactment of the penal code. In contrast, Justice C. Hari Shankar upheld the carve-out, concluding that the distinction rested on an intelligible differentia and did not violate constitutional protections.
Separately, the Karnataka High Court had previously determined that exempting a husband from prosecution for alleged rape and unnatural sex against his wife violated the guarantee of equality under Article 14 of the Constitution.
