SC resumes hearing on criminalising marital rape, next hearing on 22 Oct

The Supreme Court began hearing arguments on Thursday, 17 October, regarding the constitutional validity of exception 2 to section 375 of the Indian Penal Code (or section 63 of the new Bharatiya Nyaya Sanhita), which broadly defines 'rape' as sexual intercourse with a woman against her will or consent, or if consent has been obtained through misrepresentation or other illegal means, or if the woman is of unsound mind or under 18 years of age. 

The key issue under both codes is exception 2, which grants legal immunity to husbands, stating that "sexual intercourse or acts by a man with his wife, provided she is over 18 years of age, do not amount to rape".  

A bench comprising Chief Justice of India (CJI) D.Y. Chandrachud and justices J.B. Pardiwala and Manoj Misra is hearing a batch of petitions seeking to criminalise marital rape. The court will next hear the case on 22 October, with senior advocate Gopal Sankaranarayanan set to appear. 

In its most recent affidavit, the Union government opposed the criminalisation of marital rape, arguing that alternative legal remedies already exist to protect married women from sexual violence and that extending the offence of rape to the institution of marriage could be "excessively harsh" and disproportionate.

It further contended that criminalising marital rape would affect the sanctity of marriage and asserted that sexual violence within marriage should not be equated with such offences committed by others. 

Senior advocate Rakesh Dwivedi, representing Maharashtra, urged the Supreme Court to consider referring the case to a Constitution bench, given the national significance of the matter. CJI Chandrachud indicated that such a referral would be considered at a later stage. 

The All India Democratic Women's Association (AIDWA) has intervened as a petitioner, represented by senior advocate Karuna Nundy, who pointed out that section 63 of the BNS and section 375 of the IPC are identical in their definitions of rape, with the key difference being the age of the wife.

She emphasised the crucial role of consent in sexual acts, highlighting that section 63 defines rape as "sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud, or at a time when she has been intoxicated or deceived, or is of unsound mental health, and in any case, if she is under 18 years of age". 

“Consent means unequivocal, voluntary agreement,” Nundy argued. She further stated that the harm caused by rape, whether committed by a stranger, a husband, or a separated husband, is not fundamentally different. She observed the irony that non-consensual intercourse in a live-in relationship is classified as rape, yet a married woman subjected to repeated sexual violence is not afforded the same legal protection. 

Nundy contended that the marital rape exception violates the principles of equality, gender justice, and the freedoms of speech and expression guaranteed by the Constitution. 

The court pointed out the distinction between sections 63 and 375, particularly the difference in the threshold age for a wife: section 375 (dating back to 1860) considers a wife aged 15 and above, whereas section 63 applies to women aged 18 and above. 

The CJI remarked that exception 2 (in section 63) would not apply in cases where a man forces his wife to have sexual intercourse with another man, as such an act would undoubtedly constitute a criminal offence. 

He further queried whether declaring such actions as rape would create a new offence and whether the court would be stepping into the domain of Parliament.

The CJI also pointed out that the legal definition of rape is broader than just peno-vaginal intercourse. He noted that even the insertion of a foreign object into a woman by a stranger would be classified as rape, yet it would not be considered as such if committed by a husband under current law. 

Nundy argued that while the BNS and IPC define rape as a criminal act, the exception for husbands completely shields them from prosecution based solely on their marital status. "His status alone grants him immunity from the offence," she said.

She referred to the colonial-era 'Hale's Doctrine', which historically treated husbands and wives as a single legal entity, denying wives bodily autonomy and individual rights. The principle, first articulated by Sir Matthew Hale in 1736, held that a husband could not be guilty of rape because, through marriage, the wife had “given up herself” to her husband. The UK, however, criminalised spousal rape in 2003.

CJI Chandrachud noted that the Union government had since abandoned 'Hale’s principle', arguing that criminalising non-consensual sexual acts within marriage could undermine the social institution of marriage. The government further contended that other laws, such as the Domestic Violence Act and the anti-dowry law, already offer protection to married women.

Nundy responded by asserting that protecting married women from rape would not destroy the institution of marriage, as marriage is a personal matter rather than an institutional one. She emphasised that sexual autonomy is central to individual freedoms, referencing the Navtej Johar judgment, which decriminalised homosexual acts between consenting adults.

Gonsalves dismissed the government’s argument that marital rape was a "Western concept", citing interviews with men from Uttar Pradesh and Haryana where 40 per cent of men openly admitted to having non-consensual sexual relations with their wives. 

Solicitor-general Tushar Mehta clarified that the Centre had not argued before the Delhi High Court on this issue but was merely responding to the Supreme Court's queries. 

The CJI also referred to section 67 of the BNS, which criminalises sexual intercourse between a husband and wife during separation without the wife’s consent. He noted that the law covers cases where the couple may still be living under the same roof but do not intend to cohabit. 

Senior advocate Indira Jaising elaborated on the intention behind the law, highlighting that the amendment to section 376B of the IPC in 2012 reflected a shift in societal norms, particularly after the Nirbhaya case. She argued that the key issue was the intention to have conjugal relations. 

Mehta responded, stating that the Indian context was different from the international examples discussed, and that India’s laws should reflect its unique cultural and social realities. 

On 18 September, CJI Chandrachud had stated that if the Union government did not wish to submit a response to the petitions seeking the criminalisation of marital rape, it would need to present verbal arguments when the case was next heard by the court. 

"Sexual autonomy lies at the core of constitutional freedoms," Nundy said, highlighting that denying it within marriage is contrary to the Constitution’s values. 

Nundy also argued that a woman’s sexuality is not merely a physiological attribute; even within the private confines of marriage, she does not lose her dignity or individuality. "Patriarchy in Indian law," Nundy said, “is evident when only a man can give consent for his wife to have relations with another man." 

Citing the Joseph Shine case, Nundy read out excerpts from the judgment authored by CJI Chandrachud, where the court decriminalised adultery. "That a woman, by marriage, consents in advance to sexual relations with her husband or to refrain from sexual relations outside marriage without the permission of her husband is offensive to liberty and dignity. Such a notion has no place in the constitutional order." 

Nundy argued that the principles upheld in the Joseph Shine case provide the foundation for the petitioners' claims in this case. “A rapist remains a rapist, and marriage with his victim does not absolve him of the crime,” she asserted. 

Senior advocate Colin Gonsalves argued that rape and violence within marriage degrade the institution of marriage itself. He referred to decisions from various international jurisdictions, noting that in countries such as the UK, Canada, South Africa, Australia, the US, Ireland, and Nepal, courts had ruled against the marital rape exception.

Gonsalves pointed out that the Nepal Supreme Court had answered the question of marital rape “very nicely”. The Nepal court says rape degrades the institution of marriage and penalising it purifies the institution. Then there are recommendations from the Justice Verma committee, added Gonsalves, which in 2013 had recommended that marriage should not be a defence against rape.