The Supreme Court on Monday said it will wait for the Centre’s response before deciding a suitable date to hear a batch of petitions challenging the legal exception for marital rape.
A three-judge bench headed by Chief Justice Surya Kant, along with Justices Joymalya Bagchi and V Mohana, was hearing a mention made by senior advocate Indira Jaising. Appearing for one of the petitioners, Jaising requested that the matter be scheduled for November.
She told the court that although the petitions were listed for hearing on Wednesday, the Centre had so far filed only a preliminary objection and had not submitted a substantive response. She also pointed out that the parties had not exchanged their respective petitions, making it difficult to determine the common issues and differences between them.
The bench said the Union government would appear on Wednesday and the court would consider its position before fixing an appropriate date for detailed hearing.
Senior advocate Karuna Nundy, representing another petitioner, also requested that the matter be listed on a date that would allow all parties to complete their pleadings.
The petitions before the Supreme Court challenge the constitutional validity of the marital rape exception under India's criminal law. The issue concerns whether a husband can be prosecuted for rape when he has sexual intercourse or commits sexual acts with his adult wife without her consent.
Under the old Indian Penal Code, Section 375 contained an exception stating that sexual intercourse by a man with his wife, provided she was not a minor, did not constitute rape. The provision was retained in the new Bharatiya Nyaya Sanhita (BNS), which came into force on July 1, 2024. Exception 2 to Section 63 similarly excludes sexual intercourse or sexual acts by a man with his wife, provided she is not under 18, from the definition of rape.
The Supreme Court had sought the Centre’s response in January 2023 on petitions challenging the IPC provision. It later issued notice on a separate petition challenging the corresponding provision under the BNS.
The case also includes an appeal arising from a split verdict of the Delhi High Court in May 2022. Justice Rajiv Shakdher had favoured striking down the marital rape exception, holding it unconstitutional, while Justice C Hari Shankar took the opposite view and held that the exception was constitutionally valid.
The Supreme Court’s eventual decision could have significant implications for the interpretation of consent and sexual offences within marriage under Indian criminal law.
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