New Delhi: Supreme Court Monday said it will await the stand of the central government on a batch of petitions concerning the criminalisation of marital rape before fixing a suitable date for hearing on the issue.
Senior advocate Indira Jaising mentioned a petition related to the prosecution of a husband for marital rape before a three-judge bench headed by Chief Justice Surya Kant, urging that the batch be listed for a date in November.
Jaising, who appeared for the wife, said although the matters are scheduled to come up for hearing Wednesday, the Centre was yet to file a substantive reply and that the parties were also yet to exchange the petitions.
“Union has not filed a reply, except a preliminary objection.. I am asking for a fixed date of hearing in November. We have not exchanged the petitions. We don’t know the commonality or differences,” the senior counsel said.
“Matter is listed Wednesday. Union will appear. We will see what they say and then we will fix a suitable date accordingly,” the bench, also comprising Justices Joymalya Bagchi and V Mohana, said.
Senior advocate Karuna Nundy, appearing for another petitioner, said the matter may be fixed on any date to ensure the completion of pleadings.
The court was told that the batch pertains to constitutional validity and interpretation of the provisions concerning marital rape in the criminal law.
Under the exception clause of Section 375 of the Indian Penal Code, now repealed and replaced by the Bhartiya Nyaya Sanhita, sexual intercourse or sexual acts by a man with his wife, the wife not being minor, is not rape.
Even under the new law, exception 2 to section 63 (rape) says that “sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape”.
The top court had on January 16, 2023 sought the Centre’s response on a clutch of petitions assailing the IPC provision which provides protection to a husband against prosecution for forcible sexual intercourse if the wife is an adult.
Later, it also issued notice to the Centre on a similar plea challenging the BNS provision on the issue.
The newly enacted laws — the Bharatiya Nyaya Sanhita, the Bharatiya Nagarik Suraksha Sanhita (BNSS) and the Bharatiya Sakshya Adhiniyam — came into effect from July 1, 2024, replacing the IPC, CrPC and the Evidence Act.
One of pleas is related to the Delhi High Court’s split verdict of May 11, 2022 on the issue. The appeal has been filed by a woman, who was one of the petitioners before the Delhi High Court.
While delivering a split judgement, High Court judges Justice Rajiv Shakdher and Justice C Hari Shankar had concurred on granting the petitioners a certificate of leave to appeal in the Supreme Court as the matter involved substantial questions of law which required a decision by the top court.
While Justice Shakdher, who headed the division bench, favoured striking down the marital rape exception for being “unconstitutional” and said it would be “tragic if a married woman’s call for justice is not heard even after 162 years” since the enactment of the IPC, Justice Shankar said the exception under the rape law is not “unconstitutional and was based on an intelligible differentia”.
The concept of intelligible differentia distinguishes people or things grouped together from those that are left out.
The Karnataka High Court has earlier said exempting a husband from the allegations of rape and unnatural sex with his wife runs against Article 14 (equality before law) of the Constitution.
The set of pleas are PILs filed against the IPC provision and have challenged the constitutionality of the marital rape exception under Section 375 IPC (rape) on the grounds that it discriminates against married women who are sexually assaulted by their husbands.
