Can husband face jail for marital rape? Supreme Court to examine law

The Supreme Court examined a central legal question in the ongoing marital rape debate: can a husband face prosecution for rape when the existing criminal law specifically excludes non-consensual sexual intercourse with his wife from the offence of rape? A bench headed by Chief Justice of India Surya Kant, along with Justices Joymalya Bagchi and V Mohana, was hearing a batch of petitions challenging the constitutional validity of the marital rape exception under both the erstwhile Indian Penal Code (IPC) and the Bharatiya Nyaya Sanhita (BNS), a TOI report stated.

The court's observations came in the context of Article 20(1) of the Constitution, which protects a person from being convicted for an act that was not an offence under the law in force at the time it was committed. Under the old Section 375 of the IPC, Exception 2 excluded sexual intercourse or sexual acts by a man with his wife from the definition of rape, subject to the wife's age. The corresponding provision is now contained in Section 63(2) of the BNS.

The Supreme Court had earlier raised the question of whether courts could effectively rewrite penal legislation by creating an offence that Parliament has not defined as such.

SC says Parliament should decide if law needs to change

Solicitor General Tushar Mehta, representing the Centre, argued that the issue involved complex questions of law and policy and should ultimately be dealt with by Parliament. The bench appeared to agree with that approach, saying that if the government believes there is a problem with the existing provision, the law should be reconsidered by Parliament.

"If the govt feels there is a problem with the law, then it should go back to the drawing board and recast the law with approval of Parliament," the bench said, according to the proceedings. The court also questioned whether it would be appropriate for judges to determine the nature and scope of sexual offences when Parliament has expressly legislated on the subject.

The Centre had maintained that questions surrounding marital rape involve broader considerations and should not be settled solely through judicial interpretation.

Petitioners challenge marital rape exception

The petitions before the Supreme Court challenge the constitutional validity of the marital rape exception under the IPC as well as its corresponding provision under the BNS. The petitioners have argued that the exception should either be struck down or interpreted in a way that allows non-consensual sexual acts within marriage to be treated as rape.

Senior advocate Karuna Nundy told the court that the petitioners were not asking judges to create a new offence. According to her argument, rape is already defined in law and the issue is whether husbands can constitutionally receive immunity from prosecution for acts that would otherwise amount to rape. The bench, however, stressed that the larger question before it was constitutional validity rather than social morality.

Karnataka case also before Supreme Court

The proceedings also involve an appeal connected with a 2022 Karnataka High Court ruling, which had declined to quash rape charges against a husband accused of sexually assaulting his wife. Senior advocate Indira Jaising, appearing in the matter, referred to the Karnataka High Court's observations concerning a wife allegedly being treated as a "sexual slave".

The lawyers also referred to changes in the law concerning the age of consent. In 2017, the Supreme Court had read the marital rape exception as not applying to wives below 18 years of age. The present challenge, however, concerns the broader exception applicable to adult wives.

Court asks whether prosecution can continue under existing law

One of the significant questions raised during Wednesday's hearing was whether a husband can be prosecuted for marital rape when the statutory provision directly excludes such conduct from the definition of rape. The bench observed that while protecting victims remained important, the court also had to consider the limits of its authority under the existing criminal law.

The judges said they did not want to prejudge individual criminal proceedings while deciding the constitutional challenge. "We don't want to pronounce on that. We will take up constitutionality. We will examine the question," the court said. The hearing also touched upon provisions in the BNS concerning gang rape and the exception available to a husband.

SC to examine constitutional validity

The Supreme Court has not yet ruled on whether the marital rape exception is constitutionally valid. The bench made clear that the larger challenge would be examined independently of the individual criminal cases before it. The Centre's counter-affidavit has already been filed. The court directed that it be circulated among the lawyers within two days.

The constitutional challenge will be taken up in greater detail on a date to be fixed. At the heart of the case is a difficult question: where Parliament has expressly excluded a particular act from the definition of rape, can the judiciary remove that exclusion on constitutional grounds, or must any change come through Parliament?

(Source: TOI)