New Delhi: The Supreme Court on Thursday (October 17) commenced hearing pleas seeking seeking criminalising of marital rape and challenging the constitutionality of the exception to marital rape and said it will decide the constitutional validity of penal provisions granting immunity to a husband from prosecution for the offence of rape if he forces his wife, who is not a minor, to have sex.
A bench comprising Chief Justice of India (CJI) DY Chandrachud and Justices JB Pardiwala and Manoj Misra asked various questions from counsels representing petitioners and sought their views on the contention of the Centre that criminalising marital rape may seriously impact the conjugal relationship and lead to serious disturbances in the institution of marriage.
“What do you have on the argument that striking down the exception and criminalizing the acts of non-consensual intercourse would have the possibility of de-stabilizing the marriage,” CJI Chandrachud asked.
Apex court is seized of a bunch of pleas on issue of criminalising marital rape
The apex court is seized of a bunch of pleas on the issue of criminalising marital rape and challenging the constitutionality of the exception to marital rape in the Bharatiya Nyaya Sanhita (BNS) and the Indian Penal Code (IPC). One of the pleas before the court is related to a May 11, 2022 split verdict of the Delhi High Court on the issue in which the division bench concurred on allowing the petitioners to appeal before the apex court as the matter involved substantial questions of law, requiring a decision by the top court.
As per the Exception 2 to section 63 (rape) of the BNS, which replaced the IPC, from July 1, sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape. Under the Exception given in the IPC provision, sexual intercourse or sexual acts by a man with his wife is not rape if the wife not a minor.
The core issue is of the constitutional validity: CJI Chandrachud
“It is a constitutional question. There are two judgments before us and we have to decide. The core issue is of the constitutional validity (of the penal provisions),” CJI Chandrachud said.
This is not men vs woman case but it is people vs patriarchy case: Nundy
Senior advocate Karuna Nundy, who appeared for one of the petitioners and opened the arguments on the matter, referred to the provisions of the IPC and BNS on marital rape and argued that marital rape by a husband violates right to equality and gender freedom and said that the court must strike down a provision, which was unconstitutional. She also opposed the centre’s contention against that criminalising marital rape.
“Our Constitution is transforming with people transforming… as Maya Angelou said.. if you know better do better. This is not men vs woman case but it is people vs patriarchy case,” Nundy said.
“You are saying it (penal provision) violates Article 14 (right to equality), Article 19, Article 21 (life and personal liberty) (of Constitution). The Parliament intended that the act of of sexual intercourse with wife above 18 years of age is not rape when it enacted the exception clause,” the bench remarked and wondered “If we strike down the exception, will we be creating a new offence?”
Nepal answered question whether marital rape affects institution of marriage if husband is penalised for rape: Gonsalves
Senior advocate Collin Gonsalves, who represented one of the petitioners, also made submissions before the court and said that the verdict of the Delhi High Court that a husband cannot be held for rape is contrary to six judgments of the superior court. He also talked about judgments of England and Wales, South Africa, US, Ireland, Nepal, France, Germany, Netherlands and said that Nepal answered the question squarely whether marital rape affects the institution of marriage if husband is penalised for rape.
“Nepal Supreme Court holds that it (marital rape) is opposite as criminalising it purifies the institution of marriage,” Gonsalves submitted.
The hearing in the matter will continue next week before the apex court.
