Supreme Court agrees to list pleas to criminalise marital rape before three judge Bench

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Chief Justice of India D.Y. Chandrachud on July 19 agreed to list early a series of petitions seeking the criminalisation of marital rape.

Senior advocate Indira Jaising and advocate Karuna Nundy jointly mentioned the case for urgent listing before the Chief Justice ‘s Bench.

Ms. Nundy said that Ms. Jaising would address the court on the issues in law. Ms. Jaising said her petition also concerned child abuse, and even sought a hearing after the ongoing Constitution Bench session.

The court said the case would require a three judge Bench, and agreed to list it early.

In an earlier hearing, Solicitor General Tushar Mehta, for the Union government, had said the case had not only legal ramifications but widespread social impact.

The petitions are largely triggered by decisions from the Karnataka and Delhi High Courts, requiring an authoritative pronouncement from the apex court.

The Karnataka High Court had held that a husband was liable to be charged for rape if he had forcible sex with his wife. The Karnataka Government had supported the High Court judgment in an affidavit in the apex court subsequently.

Exception Two to Section 375 of the IPC decriminalises marital rape and holds that sexual intercourse by a man with his own wife, who is not under 18 years of age, without her consent is not rape.

“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’,” the Karnataka High Court had observed in its decision, saying an accused should be brought to trial regardless of the immunity in the penal code.

A Division Bench of the Delhi High Court had, however, in May 2022, delivered a split verdict in a separate case on the identical issue. Justice Rajiv Shakdher, who headed the two judge Bench, had struck down as unconstitutional the Exception Two to Section 375 of the Indian Penal Code (IPC).

However, Justice C. Hari Shankar, the associate judge on the High Court Bench, had rejected the plea to criminalise marital rape, noting that any change in the law should be carried out by the legislature since the issue required consideration of various aspects, including social, cultural, and legal.

Mr. Mehta had asked Chief Justice Chandrachud whether the apex court should wait till a three judge Bench of the Delhi High Court delivered its decision in the case. But the CJI said the apex court already had the benefit of the crystallised views of two judges and would go forward and hear the petitions.

The Karnataka Government has referred to the report of the Justice J.S. Verma Committee of 2013, which had recommended the removal of the exception for marital rape and proposed that the law should specify that “marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation”.

The petitions, including one by activist Ruth Manorama, had argued that the Exception undermined women’s consent to sex and violated bodily integrity, autonomy and dignity.

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