Supreme Court Lists Matters Concerning Validity Of The Marital Rape Exception In Second Week On January 2023

The Supreme Court of India has listed matters concerning the validity of the marital rape exception in the second week on January 2023. The issue was mentioned before a bench comprising Chief Justice DY Chandrachud and Justice PS Narasimha by Senior Advocate CU Singh who stated that the matters needed to be listed urgently. 

Senior Advocate CU Singh stated–

"One is the batch of petitions filed against the split verdict passed by the two-judge bench of the Delhi High Court on the criminalisation of marital rape. That is before a bench of Justice Rastogi. One is the Karnataka matter."

The lead matter concerns an appeal against the Delhi High Court split verdict on the marital rape exception. For context, Delhi High Court was considering a batch of petitions challenging the exception to Section 375 of the Indian Penal Code, which exempts forceful sexual intercourse by a man with his own wife from the offence of rape. Justice Rajiv Shakdher held that the exemption to the husband from the offence of marital rape was unconstitutional. However, Justice C Hari Shankar held that Exception 2 to Section 375 did not violate Constitution and that the exception was based on an intelligible differentia. The appeal for consideration raised the question on whether the marital rape exception to the crime of rape under section 375 (2) was unconstitutional and violative of articles 14, 15, 19 and 21.

Senior Advocate Indira Jaising, appearing in a separate matter, requested the court to not tag her matter along with the others. She submitted–

"In the Karantaka matter, the validity is not question. I would want to argue the Karnataka matter only on interpretation. Let them be separate so that there is no overlap."

She was referring to the challenge against the Karnataka High Court judgment which held that a husband will be liable for the offence under Section 376 IPC if he rapes his wife.

CJI Chandrachud stated–

"If we do this, the three judge bench will be deprived of the assistance you may provide."

To this, Sr. Adv. Jaising stated that she had no problem with the same but since the case also related to violations of the POCSO Act, it was urgent.

Accordingly, the matter is now to be heard in the second week of January 2023.