The Supreme Court is set to take up the long-running debate over marital rape and examine whether the legal exception protecting husbands from prosecution for rape within marriage can withstand constitutional scrutiny.
During the hearing, the Central government maintained that any decision to criminalise marital rape should come from Parliament rather than the judiciary. The government argued that the issue involves wider social and legislative considerations that should be addressed through the law-making process.
A three-judge bench headed by Chief Justice of India Surya Kant, along with Justice Joymalya Bagchi and Justice V. Mohana, indicated that the petitions will be taken up for final hearing after three weeks.
What Is the Supreme Court Examining?
The dispute concerns the marital rape exception under the Bharatiya Nyaya Sanhita (BNS).
Exception 2 to Section 63 of the BNS provides that sexual intercourse or sexual acts by a man with his wife, where the wife is not below 18 years of age, are not treated as rape under the rape provision.
Petitioners have challenged the constitutional validity of this exception and are seeking its removal.
The Supreme Court indicated that the proceedings would involve two major questions. First, the court will consider whether a husband can face prosecution for sexual violence even while the existing marital exception remains in force. Second, it will examine whether the exception itself is constitutionally valid.
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Marriage Does Not End a Woman’s Individual Autonomy
Justice Joymalya Bagchi observed that marriage cannot be treated as a situation in which a woman loses her individual autonomy.
The bench also acknowledged that a woman subjected to sexual activity without her consent remains a victim. However, the legal question is whether such conduct can presently be classified as rape when the statutory exception continues to exist.
The court also pointed out that other criminal provisions may apply in situations where a woman suffers serious physical injury or other forms of harm.
This distinction is important because the court is required to consider the existing wording of the law before determining whether prosecution for rape can proceed in a marital relationship.
Centre Says Parliament Should Decide
Representing the Centre, Solicitor General Tushar Mehta argued that criminalising marital rape is primarily a matter for the legislature.
According to the government’s position, the judiciary should not create a new criminal offence by removing the existing exception. The Centre has maintained that Parliament and the executive are the appropriate authorities to decide whether the present legal framework should be changed.
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The government has also highlighted the wider social consequences that could follow from criminalising marital rape. In its earlier submissions, the Centre expressed concern that treating marital sexual relations in the same manner as rape outside marriage could have implications for the institution of marriage.
The government has further argued that India’s social and cultural circumstances should be considered before adopting a legal approach followed by other countries.
Why Is the Marital Rape Exception Being Challenged?
The petitions challenge the continuation of a legal distinction between sexual violence committed within and outside marriage.
The petitioners argue that marriage does not give one spouse an unrestricted right over the other’s body. According to their position, a woman’s consent remains relevant even after marriage and serious sexual violence should not receive protection merely because the accused is her husband.
The broader constitutional challenge therefore raises questions involving individual liberty, equality, bodily autonomy and the protection available to women within marriage.
Background of the Case
The legal battle over marital rape has been continuing for several years.
Petitions seeking removal of the marital rape exception were initially filed before the Delhi High Court in 2015. In 2022, the Delhi High Court delivered a split verdict on whether marital rape should be treated as a criminal offence.
Following the divided decision, the matter moved to the Supreme Court, where the constitutional validity and interpretation of the exception are now under consideration.
What Happens Next?
The Supreme Court has indicated that it will begin the final hearing on the batch of petitions after three weeks.
The outcome could determine whether the existing marital rape exception continues in its present form or whether it can survive constitutional scrutiny.
For now, the Centre continues to maintain that any decision to make marital rape a separate criminal offence should be taken by Parliament. The Supreme Court, meanwhile, will examine the constitutional questions surrounding the existing legal provision and the extent to which other criminal provisions may apply in cases involving sexual violence within marriage.