Supreme Court to examine marital rape exception under IPC, BNS

way2barak, September 10: The Supreme Court on Wednesday guaranteed safety and security to sexually abused married women, but questioned whether courts can direct rape prosecutions against husbands when the penal law exempts marital rape from criminal liability.

A three-judge Bench headed by Chief Justice of India (CJI) Surya Kant gave voice to a critical dilemma about constitutional courts going out on a limb to endorse criminal prosecution of husbands on a presently non-existent crime.

The court made a point that, though it recognised the individual autonomy of married women, the second exception to Section 375 of the Indian Penal Code (IPC) states that “sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape”. Section 63 of the Bharatiya Nyaya Sanhita, which replaced the IPC in 2023, has carried forward the exemption given to marital rape under Section 375 though statutorily raising the age-threshold of the wife to 18 years.

“This is the law as it stands, rightly or wrongly. It is a penal law. Before a constitutional court renders a verdict that the exception is unreasonable or manifestly arbitrary, can we permit a prosecution on that score? Is it within the domain of a prosecutor to prosecute a person when there is a clear exemption under Section 375 or Section 63,” Justice Joymalya Bagchi questioned.

The primary case before the Bench is an appeal filed against a 2022 decision of the Karnataka High Court, which held that a husband could be charged with rape if he had forced himself on his wife. The High Court had relied on the Justice J.S. Verma Committee report of 2013, which had found the exception regressive. The High Court Bench had observed that “a man is a man; an act is an act; rape is a rape, be it performed by a man the ‘husband’ on the woman ‘wife’”. It had noted that “no exception under law can be so absolute that it becomes a licence for the commission of a crime against society”.

But the Supreme Court questioned the High Court’s logic on Wednesday.

“Can a court order prosecution until the constitutional validity of the exception is examined and, if needs be, declared ultra vires or read down. It is the law right now, constitutional or otherwise,” Justice Bagchi debated.

While Justice Bagchi agreed that a “person in a matrimony subjected to involuntary sexual intercourse is definitely a victim”, he said “the question before us is whether the State defines it as ‘rape’ or not”.

The court mooted that it may be for the legislature to decide if an act should be made a crime.

Senior advocate Indira Jaising, who appeared for the wife in the Karnataka case, said there was enough elasticity to interpret the present law and justify the High Court’s decision to order prosecution for rape.

“The wife was treated like a sex slave. The husband is due for prosecution notwithstanding the marital rape exception… My efforts before this court would be how to interpret the existing law,” Ms. Jaising said.

She also noted that the age of consent in Section 63 has been raised from 16 to 18 years. “Now, even consensual sex between 16 and 18 years is prosecutable. This had not been the case for 180 years,” Ms. Jaising submitted.

Solicitor General Tushar Mehta, for the union government, said the exception for marital rape must continue until the top court took a final call on its reasonableness.