NEW DELHI: The Supreme Court on Wednesday flagged the marital rape exception while hearing a husband's plea against an FIR lodged by his wife alleging rape.
A three-judge Bench of the apex court, headed by CJI Surya Kant and comprising Justices Joymalya Bagchi and V Mohana, questioned how a rape charge could be sustained against a husband when Exception 2 to Section 375 of the Indian Penal Code (IPC) exists.
"How can husband be prosecuted for rape of wife when marital rape exception exists in law? How do you reconcile?", the Bench asked the counsel appearing for the wife.
The FIR was registered under Section 375 of the IPC over allegations of forced sexual intercourse. The husband approached the High Court seeking quashing of the FIR, citing Exception 2, which states that sexual intercourse by a man with his own wife, with the wife not being under 15 years of age, is not rape.
The High Court refused to quash the case, prompting the husband to approach the apex court.
Before the Supreme Court, the husband's counsel argued that the exception continues to hold the field as a Constitution Bench of the Supreme Court is yet to decide its constitutional validity and the matter has been pending since 2024.
The wife's counsel argued that the exception cannot serve as an absolute shield and that the right to bodily autonomy applies within marriage.
Hearing the submissions, the CJI said, "Exception is there in statute. Until it is struck down, it is law. Can prosecution under 375 be sustained? Or should it be under 498A, Domestic Violence?"
Justice Bagchi noted that under the Bharatiya Nyaya Sanhita (BNS), 2023, the exception has been retained as Exception 2 to Section 63, indicating that the legislature had consciously retained it.
The Supreme Court said that until the Constitution Bench decides the issue, trial courts cannot frame rape charges against a husband where the only allegation is non-consensual sex, in the absence of separation or aggravated cruelty.
The court said it would list the batch of petitions concerning the contentious issue of marital rape for final hearing after three weeks, likely on October 14.
The apex court is seized of a batch of petitions raising the vexed legal question of whether a husband should enjoy immunity from prosecution for rape if he forces his wife, who is not a minor, to have sexual intercourse.
Under the exception to Section 375 of the IPC, now repealed and replaced by the Bharatiya Nyaya Sanhita, 2023, sexual intercourse or sexual acts by a man with his wife, with the wife not being a minor, do not constitute rape.
The Supreme Court had on January 16, 2023, sought the Centre's response to a clutch of petitions challenging the IPC provision. It later issued notice to the Centre on a similar plea challenging the corresponding provision under the BNS.
One of the pleas relates to the Delhi High Court's split verdict of May 11, 2022, in which Justice Rajiv Shakdher struck down the exception as unconstitutional, while Justice C Hari Shankar upheld it. An appeal was filed by a woman who was the petitioner before the Delhi High Court.
Another plea relates to a Karnataka High Court judgment allowing the trial of a husband for allegedly raping his wife.
The Centre, in an earlier affidavit, said the issue has significant social ramifications and requires a comprehensive approach.