Marital rape hearing deferred, CJI cites time constraints before retirement

Chief Justice of India D.Y. Chandrachud deferred the hearing on marital rape petitions on Wednesday, stating he would not be able to conclude the proceedings or issue a verdict before his retirement on 10 November.

He emphasised the need to allow all lawyers sufficient time for their submissions. The Supreme Court has scheduled further hearings on the pleas challenging the immunity granted to husbands under certain penal provisions for four weeks’ time, to be addressed by a different bench.

The three-judge bench, which includes Justices J.B. Pardiwala and Manoj Misra, began hearing the case on 17 October. Today, Senior Advocate Gopal Sankaranarayanan, representing one of the petitioners, requested at least a day to complete his arguments. The bench determined that the case would be listed again in four weeks.

Solicitor General Tushar Mehta, along with Senior Advocates Rakesh Dwivedi (representing the State of Maharashtra) and Indira Jaising (for a respondent wife), also indicated they would need a day each for their submissions. Several intervenors, including men’s rights groups, sought time to present their views to the court.

CJI Chandrachud expressed concern that if the arguments could not be wrapped up this week, it would be challenging to reach a decision before his retirement, particularly with the court closing for Diwali holidays next week with 25 October being the last working day before the court reopens on 4 November. The Chief Justice’s final working day is 8 November.

He acknowledged that additional lawyers were still seeking time to argue their positions and stated that the bench could not prevent anyone from doing so. Under the exception clause of Section 375 of the IPC, which has now been replaced by the BNS, sexual intercourse or acts by a husband with his wife—provided she is not a minor—are not classified as rape.

Karuna Nundy, who had argued last week, encouraged the bench to hear the case promptly, suggesting that cooperation among the parties could facilitate a timely conclusion. She referenced the Supreme Court's previous judgments in Joseph Shine while arguing her case. However, CJI Chandrachud reiterated that the court could not inhibit others from presenting their arguments.

The Solicitor General asserted that the Centre's position is that marriage does not negate the concept of sexual consent. He cautioned that criminalising marital rape would require a nuanced consideration of various perspectives.

“This concerns millions of women in the country, and there is a pressing urgency,” Nundy stated, urging the court to consider its legacy in this matter. The Solicitor General remarked, “Your lordship’s legacy will endure. Let us not undermine it by stating….”

The petitioners challenge Exception 2 to Section 375 of the Indian Penal Code and Section 63 of the Bharatiya Nyaya Sanhita, which state that sexual intercourse or acts by a man with his wife—provided she is over eighteen—are not classified as rape.

Even under the new legislation, Exception 2 to Section 63 maintains that sexual intercourse with one’s wife, who is not under eighteen, is not considered rape. The Centre expressed concern that, in a rapidly evolving social landscape, the amended provisions could be misused, complicating the determination of consent.

The petitioners argue that the protections afforded to non-consensual sexual acts between a husband and wife infringe upon women's rights to bodily integrity, autonomy, and dignity. In a recent affidavit, however, the Centre contended that criminalising non-consensual sexual acts within marriage could disrupt conjugal relationships and lead to significant challenges within the institution of marriage.

The Union government’s latest affidavit opposed the criminalisation of marital rape, asserting that existing legal remedies sufficiently protect married women from sexual violence, and that extending the definition of rape to encompass marital situations could be excessively punitive and disproportionate. It further claimed that such a move could undermine the sanctity of marriage and that sexual violence in this context should not be equated with offences committed by others.

The All India Democratic Women's Association (AIDWA) has intervened as a petitioner, represented by Senior Advocate Karuna Nundy. She noted that sections 63 of the BNS and 375 of the IPC share identical definitions of rape, with the main distinction being the wife’s age.

Previously, Nundy argued that “consent means unequivocal, voluntary agreement,” and stated that the harm inflicted by rape is fundamentally similar, regardless of whether it is perpetrated by a stranger or a husband. She highlighted the irony that non-consensual intercourse in a live-in relationship is classified as rape, whereas a married woman suffering repeated sexual violence lacks the same legal protection.

Nundy asserted that the marital rape exception violates principles of equality, gender justice, and the rights to free speech and expression as guaranteed by the Constitution. Senior Advocate Colin Gonsalves argued that rape and violence within marriage degrade the institution of marriage itself, citing rulings from international jurisdictions where courts in the UK, Canada, South Africa, Australia, the US, Ireland, and Nepal have rejected the marital rape exception.