Marital rape: Top court to hear pleas against laws granting immunity to husbands

The Supreme Court said it would decide the pleas based on legal principals after noting that the Centre did not file an affidavit making its stand clear on marital rape.

The Supreme Court will hear a batch of petitions seeking the criminalisation of marital rape on Tuesday and decide on the legality of the immunity granted to husbands from prosecution in such cases. A bench of Chief Justice DY Chandrachud and Justice JB Pardiwala will hear the petitions, which have been pending since last year.

Last week, the Supreme Court said it would decide the matter based on legal principals after noting that the Centre did not file an affidavit making its stand clear on the vexed issue. However, the top court said the Centre would have to present oral arguments on the tenets of the law during the hearing.

"It is a matter of law. They (Centre) will have to argue on the point of law if they have chosen not to file an affidavit," the Chief Justice of India DY Chandrachud-led bench said.

The court's remark came after a lawyer, representing the petitioners, pointed out that despite several opportunities, the Centre failed to file an affidavit.

The exception clause of Section 375 under the erstwhile Indian Penal Code (IPC) provided that non-consensual sexual intercourse by a man with his wife, if she was over 15 years, did not amount to rape.

The Bharatiya Nyaya Sanhita (BNS), which replaced the IPC in July 2024, retained the same exception (Section 63). It, however, raised the age of women from 15 to 18.

The top court had first sought the Centre's response on marital rape on January 16, 2023. The Centre then said the issue had legal as well as social implications.

The issue gained momentum after differing observations by the Karnataka and Delhi High Courts in separate cases.

In May 2022, a division bench of the Delhi High Court pronounced a split judgment on the issue related to criminalising marital rape. While Justice Rajiv Shakdher declared the provision unconstitutional, Justice C Hari Shankar upheld it. Justice Shankar said changes in the law were the sole terrain of the legislature.

In March 2023, the Karnataka High Court said exempting a husband from allegations of rape and unnatural sex with his wife ran against Article 14 (equality before law) of the Constitution.