Supreme Court to Review Constitutionality of Marital Rape Immunity for Husbands

The Supreme Court announced on Thursday that it will rule on the constitutionality of penal provisions in the Indian Penal Code (IPC) and the Bharatiya Nyaya Sanhita (BNS) that grant a husband immunity from prosecution for rape if he forces his non-minor wife to have sex with him.

Today the Supreme Court of India heard the first batch of petitions seeking criminalization of marital rape.

As arguments began, the Court asked the petitioner, “You have to tell us can we create a separate offence.”
In response to petitions calling for the criminalisation of marital rape, the Central government has defended the present rape statute, which makes an exception for sexual contact between husband and wife, claiming that the issue is more social than legal.

To comprehend the ongoing proceedings in the Supreme Court, let’s first understand the question put before the SC.

All these petitions, challenge the “Section 375” of the Indian Penal Code that contains an “exemption clause” according to which “sexual intercourse by a husband with his own wife, the wife not being under 15 years of age, is not rape.”

The very same provision has been carried over in the “Section 63” of the “Bharatiya Nyaya Sanhamita, 2023” too which is the replacement of the Section 375 of the Indian Penal Code.

Some of the petitions attacked the very provision of Bharatiya Nyaya Sanhita, 2018 too. The ancient provision that is “forced sexual intercourse is not rape if the wife is not below the age of 16.”

However, the government raised an objection to the matter and said that the topic of “marital rape” was not a subject of criticism and there are already other provisions of law that provide for protection to the married women against violence of sexual contact. They also clarified there that inclusion of “rape” in the institution of marriage might be “exactly ruthless” and inequitable.

A bench headed by the Chief Justice of India DY Chandrachud and Justices JB Pardiwala and Manoj Misra are hearing the matter today. On April 15, 2021, the Supreme Court had asked the Centre to frame laws to govern cases of rapes in the country.

However, the Union, in recent affidavit has opposed to the idea of the court criminalizing marital rape.

The case has gained worldwide attention as out of 134 countries 77 countries have criminalised the marital rape but 34 countries have decriminalised the Marital rape. India is one such country to decriminalise the marital rape

The Central government has filed a counter-affidavit opposing any court intervention in the subject, noting that if a marital crime is to be deemed a criminal offence, Parliament must make a decision on this topic after considering input from all stakeholders.

There existed laws against domestic violence and cruelty to married women, and it was already protected by other laws if such violence would occur, said the Centre in its affidavit.