The Central Government has presented a significant argument before the Supreme Court of India regarding the criminalization of marital rape, while on Wednesday, the government stated that the authority to decide whether marital rape should be treated as a criminal offense rests with the Legislature and the Executive, rather than the Judiciary. This development occurred during a hearing where the court was examining petitions that challenge the current legal immunity granted to husbands. The government's position emphasizes the separation of powers, suggesting that such a major policy shift in the criminal justice system should be handled by elected representatives in Parliament.
Supreme Court Bench and Hearing Schedule
The matter was heard by a three-judge bench led by the Chief Justice of India, Surya Kant. The bench also included Justice Joymalya Bagchi and Justice V. Mohana, while after hearing the initial submissions, the Supreme Court announced that it would begin the final hearing on the petitions seeking to criminalize marital rape in three weeks. The court has specifically directed that the case be listed for final disposal on a Wednesday and Thursday, indicating the importance and complexity of the legal questions involved. This timeline allows all parties to prepare their final arguments for a comprehensive judicial review.
Legal Challenges and Statutory Provisions
The core of the legal challenge focuses on Exception 2 of Section 63 of the Bharatiya Nyaya Sanhita (BNS). This provision is a continuation of the exception previously found in Section 375 of the old Indian Penal Code (IPC). According to this specific provision, sexual acts or sexual intercourse by a man with his own wife isn't considered rape, provided that the wife isn't under the age of 18 years. Solicitor General Tushar Mehta, representing the Central Government, reiterated that the task of redefining such acts as criminal offenses belongs to the Parliament. The petitioners, however, argue that this exception is unconstitutional and violates the fundamental rights of married women.
Observations by the Bench
During the proceedings, the bench made several critical observations regarding the status of women within a marriage. Justice Joymalya Bagchi emphasized that the institution of marriage can't be interpreted as the end of a woman's individual freedom. He raised a poignant question regarding the state's recognition of victims, asking whether the state considers a woman who is forced into non-consensual sexual relations within a marriage as a victim. Justice Bagchi noted that a woman forced into such a situation is undoubtedly a victim and stated that the court's role is to protect victims. The fundamental question remains whether the state is willing to categorize such acts as rape under the law.
Arguments from the Petitioners
Senior Advocate Karuna Nundy, appearing for one of the petitioners, presented strong arguments against the legal immunity provided to husbands. She argued that a husband can't claim legal exemption based solely on the existence of a marital relationship if he causes serious injury to his wife. Nundy contended that the bond of marriage doesn't grant any individual the license to engage in sexual relations without the wife's consent or to inflict grave physical harm upon her. The petitioners are seeking a declaration that the exception provided in the law is discriminatory and fails to provide equal protection to married women compared to unmarried women.
The Government's Stance and Background
The Central Government had previously filed an affidavit expressing its opposition to making marital rape a separate criminal offense. The government's primary concern is that criminalizing marital rape could have a serious impact on the institution of marriage and might affect the stability of marital relationships. The Center argued that issues related to sexual relations within a marriage should be addressed through existing legal provisions rather than being equated with the general offense of rape. This legal battle reached the Supreme Court following a split verdict by the Delhi High Court in 2022, where the two judges on the bench held differing views on whether marital rape should be criminalized. The Supreme Court is now tasked with deciding whether the existing legal exemption can stand the test of constitutional validity or if it must be struck down to protect the rights of married women.