A woman subjected to involuntary sexual intercourse by her husband is “undoubtedly a victim”, the Supreme Court observed on Wednesday as it examined the legal questions surrounding the marital rape exception.
The court, however, also considered whether a husband can be prosecuted for rape when the existing law specifically excludes sexual intercourse between a husband and wife from the offence of rape.
Supreme Court examines scope of marital rape exception
A bench headed by Chief Justice of India Surya Kant, along with Justices Joymalya Bagchi and V Mohana, was hearing several petitions challenging the exception under Section 375 of the Indian Penal Code. The provision has since been carried forward under the Bharatiya Nyaya Sanhita (BNS).
The bench questioned whether a constitutional court could allow prosecution under the existing framework before determining the constitutional validity of the exception.
“The question is also how a person can be punished for his conduct when the offence itself is defined in a particular manner,” the bench observed.
The proceedings also included an appeal arising from a Karnataka High Court judgment that allowed the prosecution of a husband accused of treating his wife virtually as a “sex slave”.
Karnataka case could be taken up first
The Supreme Court indicated that it may begin with the Karnataka case before moving to the broader constitutional challenge.
The bench said it would consider whether the existing legal provision could be interpreted or read down in a way that permits prosecution in such circumstances.
Senior advocate Indira Jaising, appearing for the wife in the Karnataka matter, argued that the High Court had not invalidated the marital rape exception. Instead, she submitted that it had interpreted the existing law to allow prosecution based on the circumstances of that particular case.
The judges, however, pointed to the legal difficulty involved in interpreting an expressly worded statutory exception in a way that could result in criminal liability.
Batch listed for hearing after three weeks
The Supreme Court has asked the nodal counsel handling the matter to put together the pleadings and common compilations related to the cases.
The batch of petitions and related matters has now been listed for final hearing after three weeks. The court's proceedings will determine how the existing marital rape exception should be examined against the challenges before it.