The Supreme Court will commence final hearing next month on a batch of petitions challenging the statutory exception that excludes non-consensual sexual intercourse by a husband with his adult wife from the offence of rape.

A Bench comprising Chief Justice of India Surya Kant and Justices Joymalya Bagchi and V. Mohana on Wednesday directed that the matters be listed for final hearing after three weeks, on Wednesdays and Thursdays.

The Court passed the direction after taking note that the Central Government has filed its affidavit in the connected matters and that the pleadings of the parties are complete.

Marriage Does Not Mean Extinction of Individual Autonomy

During the hearing, the Supreme Court observed that marriage cannot result in the “extinction of individual autonomy” of a woman.

Justice Joymalya Bagchi, however, pointed out that the Court would first have to consider the statutory position before permitting prosecution for rape within marriage.

“There is no question of marriage resulting in an extinction of individual autonomy. Point well taken. Now see the law as it stands.”

The Court noted that since the issue concerns a penal provision, a constitutional court would have to determine whether the statutory exception is unconstitutional, unreasonable or manifestly arbitrary before prosecution for rape could be permitted on that basis.

Two Key Questions Before Supreme Court

The Bench indicated that it would examine two principal questions.

First, whether sexual intercourse within marriage can constitute an offence even if the existing marital rape exception is upheld.

Second, whether the marital rape exception itself is constitutionally valid.

The Chief Justice observed that the Court would also consider the consequences of reading down the exception and whether an act expressly excluded from the statutory definition of rape can nevertheless be brought within the offence through judicial interpretation.

Violence Within Marriage Already Punishable Under Other Laws

The Supreme Court also highlighted that the existing marital rape exception does not provide immunity for other criminal offences arising from violence within marriage.

The Bench noted that where sexual violence results in grievous injury or death, provisions dealing with offences such as causing hurt, grievous hurt or culpable homicide may apply.

The Court therefore emphasised that the issue before it is specifically whether the State should legally classify such conduct as the offence of rape, rather than whether all forms of violence within marriage are beyond criminal law.

Background of Marital Rape Case

The issue reached the Supreme Court after the Delhi High Court delivered a split verdict in 2022 on the constitutional validity of the marital rape exception.

Justice Rajiv Shakdher had held the exception under Section 375 of the IPC, which protected husbands from prosecution for non-consensual sexual acts with their adult wives, to be unconstitutional.

Justice C. Hari Shankar, however, upheld the provision, holding that the legislative classification was based on an intelligible differentia.

The matter was subsequently brought before the Supreme Court.

The statutory exception contained in Exception 2 to Section 375 IPC has also been carried forward in substantially similar form under the Bharatiya Nyaya Sanhita, 2023, which replaced the IPC.

The Central Government has opposed removing the existing exception, arguing that the issue involves broader social and legal considerations.

Senior Advocates Indira Jaising, Gopal Sankaranarayanan, Karuna Nundy and N.S. Nappinai appeared for various petitioners, while Solicitor General Tushar Mehta represented the Central Government.

The Supreme Court has now fixed the matter for final hearing after three weeks, with hearings to take place on Wednesdays and Thursdays.