In the pleas challenging the marital rape exception under IPC/BNS, the Supreme Court today questioned whether the Courts can prosecute a husband for 'rape' of his wife pending a verdict on the constitutional validity of the exception.

The Court raised this query in reference to a Karnataka High Court Judgment which held that the exception is not absolute, and a husband, who forces non-consensual sex on his wife, was liable to be prosecuted under Section 376 IPC.

"Till we take a call on the constitutional vires of the exception, can a prosecution [for marital rape] be permitted? We will definitely protect the victims. But is it within the domain of a prosecutor to prosecute a person where there is a clear definition of an exception in S. 375 IPC (or corresponding BNS provision)?" Justice Joymalya Bagchi asked.

When Solicitor General Tushar Mehta commented that he was not "aware" as to who was being called a "victim", the judge replied that according to Senior Advocate NS Nappinai's contention, a woman subjected to involuntary sexual intercourse during marriage is a "victim". The only question for the Court is whether the State characterizes the act complained of as 'rape'.

A bench of CJI Surya Kant, Justice Joymalya Bagchi and Justice V Mohana was dealing with a batch of matters challenging/supporting the marital rape exception (Exception 2) under Section 375 IPC (now Section 63 BNS). After hearing Senior Advocates Karuna Nundy, Indira Jaising, Gopal Sankaranarayanan, NS Nappinai, Siddharth Dave, Colin Gonsalves, Mahalakshmi Pavani and Solicitor General Tushar Mehta, it posted the matter for final hearing.

The Court clarified that it will consider both questions - (a) whether a prosecution can be sustained if the Marital Rape Exception(MRE) survives, and (b) whether the MRE itself does not survive. The date of hearing will be notified shortly and the hearing will begin with arguments on the SLP filed against Karnataka High Court judgment upholding marital rape prosecution against a husband (represented by Senior Advocate Siddharth Dave).

The multiple pleas raising the issue can be categorized into four kinds – first, an appeal against the Delhi High Court split verdict on the marital rape exception; second, PILs filed against the marital rape exception; third, the plea challenging a Karnataka High Court judgment which sustained the charges framed against a husband under Section 376 IPC for forcible sex with wife; and fourth, intervening applications.

In a 2024 affidavit, the Union opposed the criminalization of marital rape. It stated that alternative remedies in law already exist to protect married women against sexual violence and attracting the offence of "rape" to the institution of marriage may be "excessively harsh" and disproportionate. The Union claimed that to decide the matter, a holistic approach is required to be taken, after due consultation with all states. It added that the issue raised before the Court presently is more 'social' than 'legal' and criminalization of marital rape falls within the ambit of legislative policy.

Courtroom Exchange

Senior Advocate Indira Jaising, for the wife in the appeal from Karnataka High Court, contended that she will be making submissions on how a marital rape prosecution can be sustained against the husband notwithstanding the existence of the MRE on the statute. Supporting the Karnataka High Court judgment, she made it clear that she does not propose to address the court on the constitutional validity of the MRE. According to her, the facts of the appeal justified the prosecution of the husband, notwithstanding the MRE. She characterised the issue as one on the interpretation of the MRE.

In response, Senior Advocate Karuna Nundy, appearing in connected petitions, said that any constitutional validity scrutiny necessarily involves the question as to whether the subject provision can be read down. She submitted that the arguments on reading down of the provision will affect the cases challenging constitutional vires of the MRE.

At this point, the CJI assured that the Court will hear the parties on both aspects - the reading down of MRE as well as striking down of the MRE as constitutionally invalid.

Justice Bagchi on his part commented that even though there is no union of individual autonomies on account of marriage, can a husband be prosecuted for 'rape' of his wife until the Court adjudicates on the constitutional validity of the MRE.

"Where there is a clear definition and an exception under Section 375, the issue is about the remit of that exception...One is the safety and security of married women...We fully appreciate the submission that there is no question of marriage resulting in a union of individual autonomy. Point well taken. Now see the law as it stands. It is a penal law. And therefore, rightly or wrongly, before a constitutional court renders a verdict that the exception was unreasonable or manifestly arbitrary, can we permit a prosecution on that score?"

The judge added that constitutional scrutiny of the MRE must balance Article 21 rights with Article 20 rights.

When Nundy argued that criminalisation of marital rape would not amount to creation of a new offence, as the offense is already existing on statute and only a class of individuals have been carved out, Justice Bagchi disagreed.

"You cannot see the Constitution in silos. When it comes to the right under Article 21, it equally impacts the right under Article 20. In penal laws, we have to factor in questions of mens rea, culpability and the way we interpret the Constitution, so that we do not spring surprises upon our citizens" the judge said.

On a pointed query by CJI Kant, as to whether a husband who commits an act as defined in Section 377 IPC against the wife, would be open for prosecution, the Solicitor General categorically replied in the negative. The SG pointed to the Court's earlier finding that carnal intercourse between husband and wife cannot be characterized as unnatural.

Notably, the SG also argued that it is for Parliament, and not the Court, to decide what it "natural" or "unnatural". On this, Nundy said that the Union should file a counter-affidavit putting on record its stance that the court does not have jurisdiction on the issue.

Case Title: Hrishikesh Sahoo v. State of Karnataka And Ors. SLP(Crl) No. 4063-4064/2022 (and connected cases)