Supreme Court asks Centre to spell out stand on marital rape by February 15

Tribune News Service

Satya Prakash

New Delhi, January 16

The Supreme Court on Monday asked the Centre to spell out its stand by February 15 on petitions seeking to criminalise marital rape, which is treated as an exception to rape under the existing law.

A three-judge Bench led by Justice DY Chandrachud asked all the parties to file their written submissions by March 3 and posted the matter for final hearing on March 21, 2023.

The direction came after Solicitor General Tushar Mehta told the Bench that the Centre would like to file a counter affidavit as the issue has legal as well as social ramifications. He said the Centre has asked the states to give their inputs on the issue.

The Bench-- which also included Justice PS Narasimha and Justice JB Pardiwala -- appointed advocates Pooja Dhar and Jaikriti Jageda as nodal counsel to prepare a common compilation of all the petitions, affidavits, counter-affidavits and written submissions for convenience of judges and lawyers.

There are three sets of petitions. The first one is by a Karnataka man who is being tried for marital rape. The top court had on July 20, 2022 stayed the verdict of the Karnataka high court that put the man on trial for allegedly raping his wife ignoring Exception 2 to Section 375 IPC that treated such cases as an exception to rape.

The second set of petitions arise out of appeals filed against a split verdict delivered by the Delhi High Court on May 11, 2022 on petitions seeking to criminalise marital rape.

The third set of petitions are in the nature of PILs challenging the constitutional validity of Exception 2 to Section 375 IPC that treated such cases as an exception to the main provision on rape.

Section 375 of the Indian Penal Code defines rape as sexual intercourse without consent and against the will of a woman. But Exception 2 to Section 375 says sexual intercourse by a man with his wife, who is 15 or above, is not rape even if it is without her consent and against her will.

In October 2017, the SC ruled that sex with one’s minor wife would amount to rape as it read down the exception to Section 375 IPC which said sexual intercourse by a man with his wife not under the age of 15 would not amount to rape.

Recognising the concept of marital rape for the purpose of abortion, the Supreme Court on September 29 last year said a woman becoming pregnant as a result of non-consensual sexual intercourse performed upon her by her husband was entitled to seek medical termination of such pregnancy.

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