The Union government on Monday submitted in the Supreme Court that making marital rape a criminal offence would have “social ramifications”, which is why it has commenced the process of consultation with states and other stakeholders.
Even as the top court asked the government to convey its stand on the issue by way of filing an affidavit by February 15, the Centre maintained that the subject cannot be looked at only through the prism of legalities and that its social impact will also have to be taken into account.
“That’s alright. You file your counter and we will see,” a bench headed by Chief Justice of India (CJI) Dhananjaya Y Chandrachud told solicitor general Tushar Mehta, who appeared for the central government in a clutch of cases pertaining to the criminalisation of marital rape.
The SG, on his part, told the bench that the Supreme Court may either hear the matter itself or could choose to let the high courts decide it first so that there are different views available before the top court as and when the matter comes up before it in future.
The bench, which also comprised justices PS Narasimha and JB Pardiwala, however, said that it is “not necessary” to await different rulings of high courts in the present matter since the two judges in the Delhi high court have already delivered spilt rulings in May 2022. “We already have two contrary judgments crystallising the points. We can hear it here,” it replied.
At this, Mehta informed the bench that the Centre had told the Delhi high court about the need to consult the states and other stakeholders in the matter. “The consultation began some months ago when we sought the state governments’ views. I am not aware of at what stage it is currently”, added the SG.
The bench then said that all these aspects can be mentioned by the Union government in its counter affidavit, and decided to club all the petitions and hear the matter together for an authoritative judgment.
Fixing the hearing in the third week of March, the court also appointed advocates Pooja Dhar and Jaikriti S Jadeja as nodal counsel in the matter to prepare a common compilation and collaborate with all the lawyers in the matter to facilitate the proceedings.
The bench is seized of a batch of petitions that relate to the exception to Section 375 of the Indian Penal Code, which exempts forceful sexual intercourse by a man with his own wife from the offence of rape.
While a set of public interest litigation (PILs) have challenged the validity of the immunity clause in the IPC on the grounds of discrimination against married women who were sexually assaulted by their husbands, the split verdict by the Delhi high court in May 2022 is also pending before the top court for a final word.
The judges of the Delhi high court disagreed with each other in their 2022 judgment with one HC judge terming the clause protecting husbands from prosecution for non-consensual sex with their wives as “morally repugnant”, while the other saying it did not violate any law and could continue to exist.
The third petition before the Supreme Court is an appeal by a man whose trial for raping his wife was approved by the Karnataka high court in a March 2022 ruling. In this matter, the Bharatiya Janata Party-ruled Karnataka government filed its affidavit in November last, supporting the criminal prosecution of the husband. The Basavaraj Bommai-government claimed that the IPC permits the prosecution of a man for raping his wife and therefore, a husband’s trial under Section 375 of IPC is valid.
With the CJI-led bench deciding to consolidate and hear all the petitions on marital rape together, Interestingly, while delivering a judgment in a case related to the medical termination of pregnancy, the Supreme Court said in September that the pregnancy of a married woman due to forcible sex by her husband can be treated as rape under the Medical Termination of Pregnancy Act, in what was the first legal recognition of “marital rape” under an Indian statute.
In 2017, the top court interfered with Exception 2 of Section 375, but only to the extent that it protected husbands from prosecution under the rape charge if the wife was not below 15 years. The Supreme Court read down the exception clause to hold that a wife must not be below 18 for the immunity to operate.
At the same time, it clarified that no opinion was being rendered on the issue of marital rape. “We make it clear that we have refrained from making any observation about the marital rape of a woman, who is 18 years of age and above, since that issue is not before us at all. Therefore, we should not be understood to advert to that issue even collaterally,” said the 2017 judgment.
The 172nd report of the Law Commission of India on “Review of Rape Laws” in March 2000 said it would not recommend deletion of the exception clause in Section 375 “since that may amount to excessive interference with the marital relationship”.
However, the justice JS Verma committee, which was set up to propose amendments in criminal laws in the wake of the gang rape of a paramedical student in December 2012, made a contrary recommendation. The committee received around 80,000 suggestions and finalised its 644-page report in 2013, proposing that “the exception for marital rape be removed” and the law must “specify that a marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation”.
The committee recommended the criminalisation of marital rape since the state of being married does not generate automatic consent to sexual acts. While a raft of other recommendations made by this panel were accepted and the criminal law was amended in 2013, the exhortation on marital rape was not heeded to by the government.
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