Marital Rape Criminalisation: SC Says It Will Hear Pleas Challenging HC's Split Verdict in 2023

A bench of Justices Ajay Rastogi and B.V. Nagarathna sought the Union government's response.

Listen to this article:

New Delhi: The Supreme Court on Friday, September 16, sought the Union government’s response to the pleas arising out of the Delhi high court’s split verdict on the criminalisation of marital rape. A bench of Justices Ajay Rastogi and B.V. Nagarathna said it will hear the petitions in February 2023.

The high court’s verdict had come on PILs filed by NGOs RIT Foundation, All India Democratic Women’s Association, and a man and woman seeking striking down of the exception granted to husbands under the Indian rape law.

LiveLaw has reported that for the All India Democratic Women’s Association, Karuna Nundy pleaded that this “substantial question” be decided by both judges.

Senior Advocate Gopal Shankarnarayan submitted that the matter has been pending since 2018. “We have 19 times tried to get it listed. We mentioned 19 times over three years to get it listed and we couldn’t get it listed,” he urged.

The high court had on May 11 delivered a split verdict, with one of the judges favouring striking down the exception in the law that grants protection to husbands from being prosecuted for non-consensual sexual intercourse with their wives and the other refusing to hold it unconstitutional.

However, both the judges had concurred with each other for granting the certificate of leave to appeal to the Supreme Court in the matter as it involves substantial questions of law that require a decision from the apex court.

Justice Rajiv Shakdher, who headed the division bench of the high court, had favoured striking down the marital rape exception 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 Indian Penal Code (IPC).

Justice C Hari Shankar, who was part of the high court’s division bench, had said the exception under the rape law is not unconstitutional and was based on an intelligible differentia having a rational nexus with the object of the exception as well as section 375 (rape) of the IPC itself.

The petitioners before the high court had challenged the constitutionality of the marital rape exception under section 375 IPC (rape) on the ground that it discriminated against married women who are sexually assaulted by their husbands.

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.

(With PTI inputs)