The Supreme Court of India has agreed to conduct the final hearing on a batch of petitions challenging the marital rape exception under Indian criminal law. A three-judge Bench headed by Chief Justice of India Surya Kant, along with Justice Joymalya Bagchi and Justice V. Mohana, has directed that the matters be listed for final hearing after three weeks.
What is the legal issue?
The central question is whether non-consensual sexual intercourse by a husband with his adult wife should constitute the offence of rape and whether the existing statutory exception is constitutionally valid.
Under the earlier Section 375 of the IPC, Exception 2 excluded sexual intercourse by a man with his own wife, provided the wife was above the statutory age, from the definition of rape. A corresponding marital exception exists under the Bharatiya Nyaya Sanhita, 2023 (BNS).
The challenge therefore has two interconnected dimensions:
1. Constitutional validity of the marital rape exception; and
2. Whether prosecution for rape can be permitted while the statutory exception remains in force.
Supreme Court’s important observation
The Court observed that marriage does not result in the extinction of an individual’s autonomy. However, it also raised an important question concerning criminal jurisprudence: if the existing penal statute expressly creates an exception, can a person nevertheless be prosecuted for an act that the statute presently excludes from the offence?
The Bench also referred to Article 20(1) of the Constitution, which embodies the principle against retrospective criminalisation and protects a person from conviction for an act that was not an offence when committed.
Background of the litigation
The issue reached the Supreme Court after divergent decisions from High Courts.
The Delhi High Court delivered a split verdict in 2022 concerning the constitutional validity of the marital rape exception. Justice Rajiv Shakdher considered the exception unconstitutional, whereas Justice C. Hari Shankar upheld it. This disagreement ultimately brought the constitutional issue before the Supreme Court.
Separately, the Karnataka High Court had permitted prosecution of a husband in a case involving allegations of forced sexual relations, creating another important question for the Supreme Court: whether such prosecution can continue under the existing statutory framework.
Why this case matters
The Supreme Court’s eventual decision could have significant implications for:
• Women’s bodily autonomy and sexual consent
• Article 14 – equality before law
• Article 15 – prohibition of discrimination
• Article 21 – right to life, dignity and personal liberty
• The scope and interpretation of rape under the BNS
• The relationship between judicial review and legislative policy
• The extent to which criminal law can regulate conduct occurring within marriage.
The case is particularly significant because the BNS replaced the IPC, meaning the Court’s eventual constitutional interpretation could directly influence the operation of India’s current criminal law framework.
Key Legal Takeaway
The Supreme Court has not yet declared marital rape a criminal offence. The Court is presently examining both the constitutional validity of the marital rape exception and the related question of whether prosecution can be maintained under the existing statutory framework.
The final judgment could therefore become a major constitutional precedent on the intersection of marriage, consent, dignity, bodily autonomy, fundamental rights and criminal law.
EL BHARAT LAW LLP | Legal Awareness Update
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