The Supreme Court on Friday sought the Centre's stand on a petition challenging the marital rape exception under the new criminal laws.
A bench headed by Chief Justice D Y Chandrachud issued notice on the petition by the All India Democratic Women's Association (AIDWA) and said it would be listed for hearing in July along with other petitions seeking to criminalise marital rape.
"It is a constitutional issue. This will be live even after the new code," the bench, also comprising Justice J B Pardiwala and Justice Manoj Misra, said.
The top court had on January 16, 2023 sought the Centre's response on certain petitions assailing the Indian Penal Code (IPC) provision which provides protection to a husband against prosecution for forcible sexual intercourse if the wife is an adult.
Under the exception given in Section 375 of the IPC, sexual intercourse or sexual acts by a man with his wife, the wife not being minor, is not rape.
Even under the new law -- Bharatiya Nyaya Sanhita (BNS), exception 2 to section 63 (rape) has clarified that "sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape".
The newly enacted laws — the Bharatiya Nyaya Sanhita, the Bharatiya Nagarik Suraksha Sanhita (BNSS) and the Bharatiya Sakshya Act — that would completely overhaul the criminal justice system will come into effect from July 1.
Besides the exception under the BNS, AIDWA has also challenged in the Supreme Court the constitutionality of section 67 of the BNS, which prescribes imprisonment ranging from two to seven years for married men who rape their separated wives.
The plea, filed through lawyer Ruchira Goel, objected to the provision on the ground that the penalty is lower than the mandatory minimum 10-year sentence otherwise applicable in cases of rape.
It also assailed as unconstitutional section 221 of BNSS, which facilitates a "lenient regime" under section 67 by prohibiting a court from taking cognizance of the offence without "prima facie satisfaction of the facts which constitute the offence upon a complaint... by the wife".
The petitioner emphasised that the marital rape exception violates Articles 14 and 15 of the Constitution as it negates a married women's consent to sex and perpetuates sexual and gender stereotypes about the subordination of a woman's individuality.
"The impugned provisions, in pegging the legal status of a woman's consent to her marital status, are manifestly arbitrary. There is no determining principle to justify the select deprivation of married women of a legal right to complain of the commission of the offence under Section 63 of the BNS by her husband," the petition said.
It further stated that the protection of the "institution" of marriage as the "objective" to sustain the exception is wholly unjust and unfair.
The petition also stated that the marital rape exception is against Article 19(1)(a) and Article 21 of the Constitution because it takes away a married women's rights to bodily integrity, decisional autonomy, and dignity.
"Given that this Hon'ble Court is seized of the matter insofar as it concerns the pari materia (in similar matter or when two provisions of two different statutes deal with the same subject) provisions of the BNS and BNSS as they were contained in the IPC and CrPC, it is prayed that this Hon'ble Court hear the instant case, which challenges provisions of the BNS and BNSS that constitute and secure the MRE (marital rape exception), respectively," the plea said.
One of pending pleas in the Supreme Court has been filed in relation to the Delhi High Court's split verdict of May 11, 2022 on the issue. This appeal has been filed by a woman, one of the petitioners before the Delhi High Court.
However, two HC judges -- Justice Rajiv Shakdher and Justice C Hari Shankar -- had concurred on granting a certificate of leave to appeal in the Supreme Court as the matter involved substantial questions of law which required a decision from the top court.
AIDWA was also one of the petitioners before the high court.
While Justice Shakdher, who headed the division bench, favoured striking down the marital rape exception for being "unconstitutional" and said it would be "tragic if a married woman's call for justice is not heard even after 162 years" since the enactment of the IPC, Justice Shankar said the exception under the rape law is not "unconstitutional and was based on an intelligible differentia".
Another plea has been filed by a man against the Karnataka High Court verdict which had paved the way for his prosecution for allegedly raping his wife.
The Karnataka High Court had on March 23, 2022 said exempting a husband from allegation of rape and unnatural sex with his wife runs against Article 14 (equality before law) of the Constitution.
