Will examine constitutional validity of marital rape exception: Supreme Court

The Supreme Court on Thursday began hearing a batch of petitions seeking the criminalisation of marital rape. The petitioners are challenging an exception under the Bharatiya Nyaya Sanhita (BNS), which protects husbands from being charged with rape, and emphasises that a wife has the right to say no.
The petitions, which challenge Exception 2 of Section 63 of the BNS (previously under Section 375 of the IPC), argue that the plea to criminalise marital rape in India represents “people versus patriarchy”.
A three-judge bench comprising Chief Justice of India (CJI) DY Chandrachud and Justices JB Pardiwala and Manoj Misra sought the petitioners’ response to the Centre’s argument that criminalising marital rape could severely affect conjugal relationships and disrupt the institution of marriage.
The bench asked, “What do you [the petitioners] have to say to the argument that criminalising non-consensual intercourse within marriage will destabilise the institution of marriage, as the Union has said in their counter?”
Senior advocate Karuna Nandy responded, “Currently, my right to say no is equivalent to my right to say a free and joyful yes.” Nandy argued that while rape is already an offence, the law excludes husbands from its purview, and declaring this exception unconstitutional would not create a separate offence.
Nandy, representing the All India Democratic Women’s Association (AIDWA), referenced the Supreme Court’s ruling on the right to privacy, asserting that privacy cannot be used to justify abuse against women. “This case is not about men versus women, it’s about people versus patriarchy,” she argued.
Justice Pardiwala said, “Husband demands. Wife declines. When the husband confines her, it is wrongful confinement. When he hurts her, it could be a simple or grievous hurt. Sections 323, 325, and 352 come into play. Criminal intimidation also applies. All of this happens so that the wife succumbs to a demand for sex. Then she succumbs, and the final act is not considered rape. So, your argument is that if all these acts are offences, why not the last part where she succumbs to sex? Is that what you’re saying?”
Justice Pardiwala further asked whether a husband should file for divorce if the wife refuses sex. Nandy responded, “The husband may wait for the next day, talk to her, or maybe be more charming. He could ask, ‘Do you think you might change your mind later?'”
Senior advocate Colin Gonsalves highlighted high court rulings that held husbands cannot be charged with rape, calling them contrary to judgements from courts in England and Wales, South Africa, the US, Ireland, and Nepal. “Nepal answered this question clearly. The Nepal Supreme Court held that criminalising marital rape strengthens the institution of marriage,” Gonsalves argued, adding that if a woman says no, it must be respected.
Solicitor General Tushar Mehta, representing the Centre, opposed the petitions and stated, “We are on a world tour here, while the Indian context is different”.
The Supreme Court stated it would first examine the constitutional validity of the exception clause and then decide whether the marital rape exception should be retained in the new criminal law, Bharatiya Nyay Sanhita. The hearing will continue on October 22.
Under the exception clause of Section 375 of the IPC, now replaced by the Bharatiya Nyaya Sanhita, sexual intercourse by a man with his wife, if the wife is not a minor, is not considered rape.
The petitions challenge the constitutional validity of Exception 2 to Section 375 of the IPC, which decriminalises rape by a husband against his wife unless she is under 15 years old. One petition is against a Karnataka High Court judgement that refused to quash charges of rape against a man accused of keeping his wife as a sex slave.
The Centre, in its response, argued that striking down Exception 2 of Section 375 on constitutional grounds would have far-reaching consequences for the institution of marriage. It said that a comprehensive approach, rather than a strictly legal one, is needed to address the issue.
The Centre also warned that criminalising marital rape could severely impact conjugal relationships and lead to disturbances in marriages. “In today’s fast-changing social and family structure, the misuse of amended provisions cannot be ruled out, as it would be challenging for a person to prove whether consent was present,” the Centre’s affidavit read.