Does a husband enjoy immunity from prosecution for the offence of rape if he forces his wife, who is not a minor, to have sex?
A three-judge bench of the Supreme Court will examine this after constitution benches conclude hearing some listed pleas, said Chief Justice DY Chandrachud when senior lawyer Indira Jaising mentioned the matter for urgent listing.
The constitutional validity of an exception clause of Section 375 (rape) of the Indian Penal Code is under challenge as it exempts a husband from being prosecuted for rape for having non-consensual sexual intercourse with the spouse if she happens to be an adult
“We have to resolve the matters concerning marital rape,” said the bench, which also included justices PS Narasimha and Manoj Misra.
“My case deals with the child sexual abuse,” Jaising said told the court.
The CJI said these matters are to be heard by a three-judge bench and will be listed for hearing after the five-judge constitution benches conclude hearing some listed cases.
A five-judge constitution bench headed by the CJI is currently hearing petitions related to regimes on grant of driving licence for different kind of vehicles under the Motor Vehicle Act.
The petitions on abrogation of Article 370 of the Constitution, which had provided special status to the erstwhile Jammu and Kashmir state, are also scheduled for hearing.
The top court had on January 16 sought the Centre's response to the petitions pertaining to criminalisation of marital rape and the IPC provision which provides protection to a husband against prosecution for forcible sexual intercourse if the wife is an adult.
The Centre, represented by Solicitor General Tushar Mehta, had said the issue has legal as well as social implications, and the government would like to file its response to the petitions.
One of pleas has been filed in relation to the Delhi high court's split verdict of May 11, 2022 on the issue.
This appeal has been filed by a woman, one of the petitioners before the Delhi high court.
While delivering a split judgement, HC 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.
Another plea has been filed by a man against the Karnataka high court verdict which paved way for his prosecution for allegedly raping his wife.
The Karnataka high court had on March 23 last year said exempting a husband from allegation 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 ground that it discriminates against married women who are sexually assaulted by their husbands.
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.
