From Sacred To Scourge: SC Scrutinizes Marital Rape Immunity's Legal Basis

The Supreme Court made it clear on Wednesday that, even if the Union Government does not take a position on the matter, it will base its decision over the validity of the immunity offered to spouses from prosecution for marital rape only on legal principles.

“It has to do with the law. If they have opted not to file an affidavit, they will have to argue on the legal point," a bench chaired by Chief Justice of India (CJI) Dhananjaya Y. Chandrachud stated.

Senior attorney Indira Jaising, who was representing one of the petitioners, requested the bench to guarantee an early hearing on the matter, which prompted the court to make its comment. Throughout the hearing, an additional attorney brought up the fact that the Center still hadn't filed its affidavit outlining its stance on the matter, in spite of multiple chances.

In response, the bench—which also included Justices Manoj Misra and JB Pardiwala—stated that the case, which raises legal issues related to a penal code clause, will be heard as a matter of law.

The case was in the court’s schedule of business on Wednesday but it could not be heard due to the day-long hearing in another subject dealing to customs appeals.

The Supreme Court is currently dealing with a batch of petitions challenging the legitimacy of Exception 2 under Section 375 of the IPC, which exempts a husband from being charged for raping his wife. The argument put up in these public interest lawsuits (PILs) is that married women who experience sexual assault from their partners are unfairly targeted by this exception.

The matter is still seeking the Supreme Court's ultimate decision and involves the divided decision of the Delhi High Court dated May 2022. Out of the two Judges who rendered the ruling, one deemed the marital rape exemption to be "Morally Repugnant," while the other determined that the exclusion was lawful and could survive indefinitely.

The Karnataka High Court affirmed a man's trial for raping his wife in March 2022, and his appeal is one of the cases that is still ongoing. This trial was postponed by the Supreme Court until July 2022. The husband's prosecution was supported by an affidavit filed by the then-BJP-led Karnataka Government in November 2022, which claimed that the IPC permitted a husband to be tried criminally for raping his wife. But it is unclear whether the Karnataka Government, which just took office, agrees with this stance.

The Attorneys Pooja Dhar and Jaikriti S. Jadeja were designated as Nodal Counsel by the Supreme Court in January 2023 in order to expedite the proceedings by gathering pertinent documents from all parties into one document.

A further petition challenging the Bharatiya Nyaya Sanhita (BNS), the New Criminal Code that took the place of the IPC on July 1st, exception for marital rape was also permitted by the CJI-led bench in May of this year. This petition has been tagged along with the previous batch of petitions addressing the same subject by the All India Democratic Women's
Association (AIDWA).

Author:
Aarya Kadam (News Writer) is a final-year BBA student and a creative writer with a passion for current affairs and legal Judgments.