The Supreme Court on Monday asked for the Centre’s reply on a batch of pleas demanding to criminalise marital rape, reports said.

A bench led by Chief Justice of India DY Chandrachud comprising Justices PS Narasimha and JB Pardiwala sought the Union government to file its response on the issue by February 15. The CJI Chandrachud said the final hearing on the pleas would start on March 21.

One of the petitions has been filed in connection to the Delhi High Court’s split verdict on the issue. The appeal has been filed by Khushboo Saifi, one of the petitioners, before the Delhi High Court.

In May 2023, a division bench of the Delhi High Court delivered a split verdict on petitions who demanded the criminalisation of marital rape.

Justice Rajiv Shakdher said, “The impugned provisions in so far as they concern a husband having intercourse with his wife without consent are violative of article 14 and are, therefore, struck down.”

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While Justice C Hari Shankar said, “I do not agree. There is no support to show that the impugned exception violates Articles 14, 19 or 21. There is an intelligible differentia. I am of the view that the challenge cannot sustain.”

Another petition was filed by a man against the Karnataka High Court’s March 2022 verdict which held that exempting a husband from the allegation of rape and unnatural sex with his wife runs against Article 14 (equality before law) of the Constitution.

A single-judge bench of Justice M Nagaprasanna of the Karnataka High Court called it an age-old regressive thought that husbands are the rulers of their wives, and their body, mind, and soul should be effaced, reports said.

Other petitioners have challenged the constitutionality of the marital rape exception under Section 375 of the Indian Penal Code rape on grounds that it discriminated against married women who are sexually assaulted by their husbands.

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The Karnataka government has supported a trial in the Supreme Court against a man in a marital rape case. In an affidavit filed before the apex court, the Karnataka government has sought dismissal of the petition challenging the High Court order and favored prosecution of the husband accused of marital rape.

The state government has said that the Karnataka High Court has considered all relevant questions of law as to whether the section of the law, which decriminalises marital rape, should be struck down. The government has submitted it’s say that the petition is not maintainable in law and on facts and needs to be dismissed.

The affidavit states that the Karnataka High Court has considered all the questions of law involved in the present petition and no interference of the apex court is required. Citing the case, the state government said whether the allegation is true or not is a matter of trial and the accused cannot be acquitted at this stage despite the protection of husbands against marital rape under the IPC.

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After feeling unfairly treated by the High Court verdict, the husband filed the special leave petition before the Supreme Court. But the SC bench comprising the former Chief Justice of India NV Ramana, Justice Hima Kohli and Justice Krishna Murari had passed an order of ad-interim stay on High Court’s judgement.

The apex court had issued notice to Karnataka

For the unversed, Clause-2 of Section 375 of IPC excludes the husband from the category of crime of marital rape. The Karnataka government filed this affidavit in response to the notice issued by the apex court on the appeal of the accused husband against the High Court’s verdict. The Karnataka High Court on March 23 had said that exempting a husband from the charge of rape and unnatural sex with his wife was against Article 14 (right to equality) of the Constitution.

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[vc_row][vc_column][vc_column_text]Centre has insisted that consideration of rape in marriages would weaken traditional family values in India, and that marriage presumes consent for sexual intercourse

The Supreme Court bench of Justices Madan B Lokur and Deepak Gupta, on Wednesday (September 6), reserved its judgment in the critical case of criminalising marital rape and sexual intercourse between a husband and his minor wife – where the wife is aged between 15 and 18 years.

The case is about a plea filed by the NGO Independent Thought, questioning the constitutionality of a provision permitting a man to have physical relationship with his wife even if she is aged between 15 and 18, without her consent. Terming this as marital rape, the NGO has challenged Exception 2 to Section 375 of the Indian Penal Code and sought that marital rape be made a criminal offence.

Under the definition of rape in Section 375 of the Indian Penal Code, a man is said to commit rape if he indulges in specified sexual acts with a girl under the age of 18 – with or without her consent. However, Exception 2 says sexual intercourse or sexual acts by a man with an underage girl will not be considered rape so long as the girl is his wife and is not under 15 years of age. Independent Thought and Child Rights Trust, an intervener in the case, has urged the apex court to strike down this provision.

The petitioners have asked how marriage of a girl aged between 15 and 18 can justify denying her a legal protection which is extended to girls of the same age group who are not married. Independent Thought, through its counsel, advocate Gaurav Agarwal, has submitted before the court that the same law which says that any girl aged between 15 and 18 is incapable of giving her consent for sexual intercourse also assumes that a girl of the same age group, if married, is capable of doing so. The counsel has said that this interpretation of the law creates an unreasonable category of married minor girls and denies them their right to protection from the State against rape by their husbands.

In an argument that can only be described as revoltingly regressive, the Centre has defended Exception 2 and sexual intercourse between a husband and his minor wife on the ground that it is traditional and that the Parliament was aware of the inconsistency between provisions of the Indian Penal Code and the Prohibition of Child Marriage Act, 2006 when it chose to retain the exception, while increasing the age of consent from 16 to 18 for girls in 2013.

On Wednesday, senior advocate Rana Mukerjee, arguing for the Union of India, said: “The Law Commission’s 77th report makes a provision for the girl to report any sexual offence, directly to highest police authorities. From the 13th Law Commission report pertaining to consent to have sexual intercourse, a committee was formed which raised the age of consent from 16 to 18years.”

“A committee formed under Justice (JS) Verma, relied on this reference and recommended a compulsory age of 18 years to have sexual intercourse,” the counsel said, while asserting that “consideration of rape in marriages would weaken traditional family values in India, and that marriage presumes consent.”

The counsel said that 15 years to 18 years is a qualified age to have sexual intercourse. Even, Muslim Law recognises 15 years as the age of puberty.

The case had through the course of arguments in the Supreme Court raised a debate on media and social media platforms over the constitutionality of allowing a married minor girl to be subjected to sexual activity, and in many cases marital rape, by her husband, with several child rights activists and medical experts also highlighting the ill-effects that this has on the health of the girl or ‘child bride’.

Recently, Swaraj Kaushal, the former Governor of Mizoram and husband of Union external affairs minister Sushma Swaraj, had been trolled on Twitter after he tweeted saying: “There is nothing like marital rape. Our homes should not become police stations.”[/vc_column_text][/vc_column][/vc_row]

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