Context: The Supreme Court sought the Centre’s response on a batch of petitions related to criminalisation of marital rape. A bench led by Chief Justice of India DY Chandrachud and comprising Justices PS Narasimha and JB Pardiwala asked the Union government to file its response on the issue by February 15. The final hearing on the pleas would commence from March 21, the CJI said.
About Marital rape
- Marital rape refers to rape committed when the perpetrator is the victim’s spouse.
- The Indian Penal Code (‘IPC’) in Section 375 criminalises the offence of rape.
- It is an expansive definition which includes both sexual intercourse and other sexual penetration such as oral sex within the definition of ‘rape’.
- However, in Exception 2, it excludes the application of this section on sexual intercourse or sexual acts between a husband and wife. Thus, a wife under Indian law does not have recourse under criminal law if a husband rapes her.
- While the law does not criminalize marital rape, a specific form of marital rape is criminalized, i.e., non-consensual sexual intercourse when the wife and husband are living separately on account of judicial separation or otherwise.
About Karnataka High Court verdict
- The Karnataka Government has supported the prosecution of a husband in a case for marital rape. The State has filed an affidavit in the Supreme Court supporting a Karnataka High Court judgment which sustained the charges framed against a husband under Section 376 IPC for forcible sex with wife.
- The Karnataka High Court had in its ruling held that the exemption of the husband on committing rape cannot be absolute, as no exemption in law can be so absolute that it becomes a license for the commission of a crime against society.
About Delhi High Court verdict
- In May 2022, a division bench of the Delhi High Court gave a split verdict on the criminalisation of marital rape. Justice Rajiv Shakdher, who headed the bench, struck down Exception 2 to Section 375 as being violative of Articles 14, 15, 19(1)(a) and 21 of the Constitution.
- Justice C. Hari Shankar, however, chose to disagree with the opinion given by Justice Shakdher. He held that the second exception to Section 375 does not violate Article 14, and is based on an intelligent differentia, having a rational nexus with the object both of the impugned Exception as well as Section 375 itself. He further held it does not violate Articles 19(1)(a) and 21. He held that none of the grounds on which a statute could be struck down existed in the present case. He added that the court could not substitute its subjective value judgment for that of a democratically elected government.
Supreme Court Petitions
- The Supreme Court is all set to begin hearing a batch of petitions questioning Exception 2 to Section 375 (rape) of the Indian Penal Code (‘IPC’), which provides immunity to the husband from being prosecuted for raping his wife.
- This exception states that sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape. In common parlance, this exception is referred to as protecting ‘marital rape’.
- A three-judge bench comprising Chief Justice of India (‘CJI’) Dr. D.Y. Chandrachud and Justices P.S. Narasimha and J.B. Pardiwala directed all lawyers appearing on behalf of the various parties to collaborate with the two nodal counsels appointed by the court, by supplying them with such documentary and other material on which they seek to place reliance during the course of the submissions.
- There are three sets of petitions before the bench.
- The first is an appeal filed by a husband against the Karnataka High Court’s judgment on March 23, 2022, upholding the framing of charge against him under Section 375 of the IPC.
- The second is a batch of appeals arising from the split verdict of the Delhi High Court on May 11, 2022, and the last is writ petitions filed under Article 32 of the Constitution challenging the marital rape exception.