Marriage 'no shield' against sexual violence, Supreme Court examines rape prosecution

The Supreme Court on Wednesday decided to first hear an appeal arising from a Karnataka High Court judgment that permitted the prosecution of a husband accused of forcing his wife into non-consensual sex, before examining the wider constitutional challenge to the marital rape exception. A bench headed by Chief Justice of India Surya Kant, and comprising Justices Joymalya Bagchi and V Mohana, said the Karnataka case raised the preliminary question of whether prosecution for rape could proceed under the existing law even while an express exception for husbands remained on the statute book.

Senior advocate Indira Jaising, appearing for the wife, defended the Karnataka High Court judgment and argued that prosecution could be sustained under the existing legal framework without necessarily striking down the marital rape exception. She referred to the allegations that the woman had effectively been treated as a “sex slave” and argued for an interpretation of the provision that would permit prosecution in such circumstances. The Supreme Court said it would first examine this question of statutory interpretation before moving to the constitutional validity of the exception.

Marriage does not extinguish autonomy

During the hearing, Justice Bagchi observed that marriage could not result in the extinction of an individual’s autonomy, while stressing that the court was dealing with penal law and therefore had to carefully examine the boundaries of criminal liability. The bench questioned whether a husband could be prosecuted specifically for rape when the statute contains an explicit marital exception, unless that exception is first found constitutionally invalid or interpreted in a manner permitting such prosecution.

The court noted that sexual violence within marriage does not necessarily leave a husband immune from all criminal liability. Other penal provisions can apply depending on the nature of the violence, including where grievous injury or death is caused. The bench, however, indicated that the specific question of prosecution for rape required careful consideration because criminal laws must provide clarity about conduct that attracts penal consequences.

Constitutional challenge next

The larger batch of petitions challenges the validity of the marital rape exception under the erstwhile Indian Penal Code and the corresponding provision in the Bharatiya Nyaya Sanhita. The exception broadly keeps sexual acts by a man with his adult wife outside the statutory definition of rape. Petitioners have argued that such differential treatment of married and unmarried women violates constitutional guarantees of equality, dignity, bodily integrity and personal autonomy.

Senior advocate Karuna Nundy, appearing for another group of petitioners, argued that the questions of statutory interpretation and constitutional validity were closely connected. Lawyers also drew the court’s attention to changes made to India's rape laws after the 2012 Nirbhaya case, when the definition of rape was significantly expanded while the marital exception was retained.

Final hearing after three weeks

Solicitor General Tushar Mehta told the court that the Union government would assist it on the questions of law and rely on responses already filed in the connected proceedings. The Centre has maintained that criminalising marital rape involves significant social and legal considerations and that the issue falls primarily within the legislative domain.

The Supreme Court directed that copies of the Centre’s response be provided to all lawyers within two days and asked the parties to compile their pleadings and supporting material. The batch of cases has been listed for final hearing after three weeks, with hearings to be taken up on Wednesdays and Thursdays.