Marital rape: Supreme Court to examine prosecution of husbands

New Delhi: The Supreme Court on Wednesday directed that petitions challenging the marital rape exception be listed for final hearing after three weeks, with the matter to be heard on Wednesdays and Thursdays.

Wednesday's proceedings saw significant oral observations on the constitutional question: Whether a husband can be prosecuted for rape if the statutory marital rape exception continues to remain in force.

A three-judge bench of Chief Justice of India (CJI) Surya Kant and justices Joymalya Bagchi and V Mohana acknowledged the petitioners' submission that marriage cannot extinguish a woman's individual autonomy. "There is no question of marriage resulting in an extinction of individual autonomy. Point well taken," justice Joymalya Bagchi verbally remarked.


However, justice Bagchi immediately turned to the existing statutory framework and pointed out that the issue involved penal law. He observed that before a person could be prosecuted for an act currently excluded from the offence of rape, a constitutional court would first have to hold the statutory exception unreasonable or manifestly arbitrary. "Only then can prosecution on that score be permitted," justice Bagchi said.

The observation brought into sharp focus the central legal question before the bench: While marriage cannot extinguish a woman's individual autonomy, the question of criminal prosecution cannot be answered merely by recognising that autonomy. And that the top court must first determine whether the statutory exception itself can constitutionally survive.

The bench indicated that it would examine two distinct questions. First, whether prosecution for marital rape can somehow be sustained even if the statutory exception survives. Second, whether the exception itself is constitutionally valid.

The court will also consider the implications of "reading down" the exception - including whether an act expressly excluded from the offence of rape can nevertheless be brought within the offence through judicial interpretation.

The issue had also come up before the bench earlier this week when CJI Kant questioned the necessity of a counter-affidavit from the Centre in a challenge concerning constitutional validity, asking, "When it is a constitutional validity matter...what is the need for the counter?" The bench nevertheless decided to hear the Centre's position before fixing the final-hearing schedule.

The petitions challenge the marital rape exception originally contained in exception 2 to section 375 of the Indian Penal Code. A similar exception continues under BNS, which replaced IPC.

The constitutional challenge concerns the rights to equality, dignity, bodily autonomy and personal liberty, with the petitioners arguing that marriage cannot constitute a basis for denying a woman protection against non-consensual sexual intercourse. The litigation reached SC after Delhi High Court delivered a split verdict in 2022.

The Centre has opposed the plea for criminalisation of marital rape, arguing that the issue has wider social and legal implications for marriage and conjugal relationships.