SC set to hear pleas on criminalisation of martial rape on Feburary 2023, seeks centre's response

NEW DELHI:  The Supreme Court is all set to hear pleas challenging the Delhi HC’s split verdict on the issue of criminalisation of marital rape, on February 2023, as it sought the Centre’s response on Friday.

“Leave granted. List matter in February. Issue notice. This position is existing for a long time, we’ll examine it,” the bench of Justices Ajay Rastogi and BV Nagarathna said.

Pleas challenging HC’s order that were filed by NGO’s Rit Foundation, All India Democratic Women’s Association (AIDWA) and Khushboo Saifi argued that the marital rape exception created an unfair distinction between married and unmarried women. It was also argued that it violated the privacy, dignity and right of choice of a married woman.

HC’s May 11 order had come in a batch of petitions challenging the exception which exempts prosecution of husbands for non-consensual sexual intercourse with their wives. Under the exception given in section 375 of the IPC, sexual intercourse or sexual acts by a man with his wife (the wife not being minor) is not rape.

Justice Rajiv Shakdher favoured striking down the exemption while Justice C Hari Shankar refused to declare it unconstitutional. However, saying that substantial questions of law are involved, the bench granted a certificate to appeal to SC.

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Justice Shakdher said marital rape with one stroke deprives nearly one-half of the population of equal protection of the laws. Adding that it would be tragic if a married woman’s call for justice is not heard even 162 years after the enactment of IPC, he had said, “In every sense, marital rape exception (MRE), in my view, violates the equality clause contained in Article 14 of the Constitution… Marital rape with one stroke deprives nearly one-half of the population of equal protection of the laws. The classification between married and unmarried women in the context of MRE (and what is observed hereinabove) is without doubt unreasonable.”

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The exception given in section 375 of the IPC states that sexual intercourse or sexual acts by a man with his adult wife is not rape.

Justice C Harishankar had however said that it would be a complete misadventure for the court to strike down the exception and, thereafter, leave it to the legislature to effect other necessary amendments.