Plea To Criminalise Marital Rape | 'If Wife Says No, Husband's Only Option Is To File For Divorce?' Supreme Court Asks

The Supreme Court today (October 17) commenced the hearing of a batch of petitions seeking the criminalization of marital rape. The petitioners represented by Senior Advocate Karuna Nandy stressed that the Exception no.2 under the definition of Rape as per the old and new penal provisions violated the fundamental rights of a woman under Articles 14, 21 and 19 of the Constitution and reduced her to a mere sexual object. The bench comprising CJI DY Chandrachud, Justices JB Pardiwala and Manoj Misra was hearing the challenge. During the hearing, Nundy, representing the All India Democratic Women's Association (AIDWA) and certain other individuals, said, that this case was not about "women versus men. It is about people vs patriarchy."Notably, S. 63 of the BNS and erstwhile S. 375 of the IPC exclude non-consensual sex between a married man and his wife from the definition of 'rape'.Exception 2 of Section 375 of the Indian Penal Code (now Section 63 of BNS) states : "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape."The bench asked the petitioners to address the point whether the Court can create an offence. Nundy in response submitted that non-consensual sex is already an offence and but of the Exception, a husband would be liable for rape. Hence, it was not the creation of a new offence, rather the taking away of an unreasonable classification and arbitrary exception.During the hearing, Justice Pardiwala, pondering on the repercussions of criminalizing marital rape, asked Nandy about a situation where a wife files an FIR against her husband."If husband demands and if wife declines, she believes that the husband should not have done it, and next day she goes and lodges FIR that this is what happened, then how do you perceive - we want your assistance on it" Referring to the fundamental right of freedom of speech and expression under Article 19(1)(a), Nandy asserted that the presence of the exception hinders a wife's right to express consent for sexual acts in a marriage. "Currently my right to say no takes away my right to also say a free and joyful yes. Because I have been reduced under this exception to a legal subject and a sexual object."J Pardiwala then reverted "So your argument is, if it is 'No' then the only option for the husband is to file a divorce?" Nandy underscored that the husband has to respect the 'No' of the wife and expressed : "Mylords, he may go for divorce, he may wait till the next day! He may be more charming, he may talk to me, do you have a headache? that's all....he may say -do you think you might change your mind?" A Non-Exhaustive Essence Of 'Sexual Acts' Under Exception 2 : Court Observes During the hearings, the Court asked whether S. 63(b) of the BNS would come within the meaning of 'sexual acts'. Here the Court pertinently asked if the husband forces the wife to have sex with any other man apart from him, would that also be exempted under the exception. Notably, S. 63(b) BNS states that a man commits rapes if he " inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person."The Court then agreed to the argument of the petitioners that the description of sexual acts under clauses (a)-(d) which constitute an offence of rape can be read to mean the sexual acts under the exception also. The CJI then remarked, "sexual acts (a)-(d) may not be exhaustive but they are sexual acts, if you comprehend that under (b) that is also sexual act and would put the husband under exception 2." Nandy also clarified that this would mean that a gangrape including the husband on the wife would also be exempted under Exception no. 2. "This would except the husband also from gangrape" The Exception 2 Would Only Make The Husband Liable For Concomitant Acts But Not Rape : Justice Pardiwala Highlights Justice Pardiwala noted that exception 2 under the definition of rape would practically give immunity to the husband for committing forceful sex, while all the other associated or 'concomitant acts' like wrongful confinement, grievous hurt , abuse and assault would still make him liable under respective penal provisions. "We are setting a situation that the husband goes to the extent of assaulting wife, behaving rudely that would postulate everything, S. 498, 325, 326- if it results in grievous hurt, etc but when the final act is committed (rape) you say that he will be prosecuted for all these offences but you cannot be prosecuted for this (marital rape)"No Intelligible Differentia In 'Range Of Harm' Faced Between A Married & Unmarried Rape Victim; Exception Roots In The 'Hale's Principle' Senior Counsel Nandy stressed that the exception finds no grounds of intelligible differentia under Article 14 as the trauma, harm or duress that any woman faces in the act of rape is the same. She explained that the range of harm...

Plea To Criminalise Marital Rape | 'If Wife Says No, Husband's Only Option Is To File For Divorce?' Supreme Court Asks

Anmol Kaur Bawa

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