The Centre on Wednesday told the Supreme Court that any decision to make marital rape a separate criminal offence should be taken by Parliament and the executive, rather than by the judiciary.
The submission came as the top court dealt with a batch of petitions challenging the marital rape exception under Indian criminal law. A three-judge bench headed by Chief Justice of India Surya Kant, along with Justices Joymalya Bagchi and V Mohana, directed that the pleas be listed for final hearing after three weeks, on Wednesdays and Thursdays.
Solicitor General Tushar Mehta, appearing for the Centre, maintained that criminalising marital rape falls within the legislature's domain.
Supreme Court flags women's autonomy
The case concerns Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita (BNS). The provision says that sexual intercourse or sexual acts by a man with his wife, provided she is not under 18, do not constitute rape. The provision carries forward the marital rape exception that existed under the erstwhile Indian Penal Code.
During the hearing, Justice Bagchi stressed that a woman's safety and physical security remain central to the issue. He asked whether the State should legally classify such an act as rape.
"A woman subjected to involuntary sexual intercourse [in marriage] is undoubtedly a victim. We will protect victims. Only question is whether State defines it as rape," Justice Bagchi asked.
The judge also observed that marriage cannot mean the "extinction of a woman's autonomy".
Court to examine two key questions
The bench said it would consider two issues—whether a prosecution can proceed even if the marital rape exception remains in place, and whether the exception itself is constitutionally valid. The court is also expected to examine whether an act specifically excluded from the definition of rape can nevertheless be treated as an offence through judicial interpretation.
Senior Advocate Karuna Nundy, representing one of the petitioners, argued that marriage cannot provide immunity when a husband causes serious harm to his wife or engages in sexual acts without her consent.
Centre opposes separate offence
The Centre had earlier opposed making marital rape a distinct criminal offence, arguing that doing so could have wider consequences for marriage and marital relationships. It has maintained that sexual relations within marriage should be addressed through existing legal provisions rather than being placed on the same footing as ordinary rape.
The matter reached the Supreme Court after the Delhi High Court delivered a split verdict in 2022 on the constitutional validity of the marital rape exception.