Marital rape exception under constitutional scrutiny: Supreme Court to examine provisions in IPC, BNS

The Supreme Court on Wednesday agreed to examine the constitutional validity of the marital rape exception under the Indian Penal Code (IPC) and the corresponding provision under the Bharatiya Nyaya Sanhita (BNS), raising a key question over whether non-consensual sexual acts within marriage can be prosecuted as rape when the law expressly excludes them.

The Court will also hear an appeal arising from a March 2022 Karnataka High Court judgment that refused to quash rape charges against a husband accused of brutally sexually assaulting his wife.

The matter came up before the Supreme Court while it was hearing a batch of petitions, including PILs filed by separate petitioners, challenging Exception 2 to Section 375 of the IPC. The provision states that sexual intercourse or sexual acts by a man with his own wife do not constitute rape.


The petitions also challenge the corresponding exception under Section 63 of the BNS and seek its reading down to the extent that it excludes non-consensual sexual acts within marriage from the offence of rape.

SC weighs constitutional limits of marital rape exception

During Wednesday's hearing, the Bench indicated that the challenge involves an important constitutional question: whether a penal provision can be interpreted or read down to permit prosecution for rape within marriage when the existing law expressly excludes such conduct.

The Bench also questioned whether, pending a decision on the constitutional validity of the exception, a person could be prosecuted for an offence that is expressly excluded by Section 375 of the IPC.

"We would definitely protect the victims but is it within the domain to prosecute a person where there is direct exclusion of a person under 375," the Court observed.

Senior Advocate Indira Jaising, appearing in the appeal arising from the Karnataka High Court judgment, submitted that the High Court had already taken the view that where a wife was treated as a "sexual slave", prosecution could follow. She also pointed out that the age of consent had subsequently been raised from 16 to 18 years.

Jaising sought the listing of the appeal against the Karnataka High Court order, as she represents the respondent wife in whose favour the High Court had ruled.

Senior Advocate Karuna Nundy submitted that the constitutional challenge would require the Court to consider whether the marital rape exception could be read down or otherwise interpreted in conformity with constitutional guarantees.

The Bench said the issue was not merely one of social morality, but whether the statutory provision could withstand constitutional scrutiny.

"What is social morality? When people speak through their representatives - what we do is test it with the Constitution. It's for the people to decide. Court says it can only speak its constitutional language," the Court observed.

The Bench also made clear that it did not want to prejudge the question of individual prosecutions while examining the constitutional validity of the provision.

"We don't want to pronounce on that. We will take up constitutionality. We will examine the question," the Court said.

BNS marital exception, gang rape provisions also under scrutiny

During the hearing, lawyers also drew the Court's attention to the corresponding provision under the BNS and raised questions about the scope of the exception under the new criminal law. The Bench was also apprised of the gender-specific nature of certain provisions dealing with sexual offences.

The lawyers further raised the position under the BNS in relation to gang rape, including the exception available to a husband, and discussed the implications of retaining the marital exception under the new criminal law.

The petitions principally concern the constitutional validity and reading down of Exception 2 to Section 375 of the IPC and the corresponding exception under Section 63 of the BNS.

Solicitor General of India Tushar Mehta, appearing for the Union government, submitted that the Centre's counter-affidavit had already been filed and could be treated as its reply. The Court directed that the counter-affidavit be supplied to all counsel within two days.

The matter will be taken up for detailed arguments on a date to be fixed.

(With input from ANI)