Plea To Criminalise Marital Rape | 'If Wife Says No, Husband's Only Option Is To File For Divorce?' Supreme Court Asks

Notably, S. 63 of the BNS and erstwhile S. 375 of the IPC exclude non-consensual sex between a married man and his wife from the definition of 'rape'.

Exception 2 of Section 375 of the Indian Penal Code (now Section 63 of BNS) states : "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape."

The bench asked the petitioners to address the point whether the Court can create an offence. Nundy in response submitted that non-consensual sex is already an offence and but of the Exception, a husband would be liable for rape. Hence, it was not the creation of a new offence, rather the taking away of an unreasonable classification and arbitrary exception.

During the hearing, Justice Pardiwala, pondering on the repercussions of criminalizing marital rape, asked Nandy about a situation where a wife files an FIR against her husband.

"If husband demands and if wife declines, she believes that the husband should not have done it, and next day she goes and lodges FIR that this is what happened, then how do you perceive - we want your assistance on it"

Referring to the fundamental right of freedom of speech and expression under Article 19(1)(a), Nandy asserted that the presence of the exception hinders a wife's right to express consent for sexual acts in a marriage. 

"Currently my right to say no takes away my right to also say a free and joyful yes. Because I have been reduced under this exception to a legal subject and a sexual object."

J Pardiwala then reverted "So your argument is, if it is 'No' then the only option for the husband is to file a divorce?"

Nandy underscored that the husband has to respect the 'No' of the wife and expressed : 

"Mylords, he may go for divorce, he may wait till the next day! He may be more charming, he may talk to me, do you have a headache? that's all....he may say -do you think you might change your mind?" 

A Non-Exhaustive Essence Of 'Sexual Acts' Under Exception 2 : Court Observes 

During the hearings, the Court asked whether S. 63(b) of the BNS would come within the meaning of 'sexual acts'. Here the Court pertinently asked if the husband forces the wife to have sex with any other man apart from him, would that also be exempted under the exception. 

Notably, S. 63(b) BNS states that a man commits rapes if he " inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person."

The Court then agreed to the argument of the petitioners that the description of sexual acts under clauses (a)-(d) which constitute an offence of rape can be read to mean the sexual acts under the exception also. 

The CJI then remarked, "sexual acts (a)-(d) may not be exhaustive but they are sexual acts, if you comprehend that under (b) that is also sexual act and would put the husband under exception 2." 

Nandy also clarified that this would mean that a gangrape including the husband on the wife would also be exempted under Exception no. 2. 

"This would except the husband also from gangrape" 

The Exception 2 Would Only Make The Husband Liable For Concomitant Acts But Not Rape : Justice Pardiwala Highlights 

Justice Pardiwala noted that exception 2 under the definition of rape would practically give immunity to the husband for committing forceful sex, while all the other associated or 'concomitant acts' like wrongful confinement, grievous hurt , abuse and assault would still make him liable under respective penal provisions. 

 "We are setting a situation that the husband goes to the extent of assaulting wife, behaving rudely that would postulate everything, S. 498, 325, 326- if it results in grievous hurt, etc but when the final act is committed (rape) you say that he will be prosecuted for all these offences but you cannot be prosecuted for this (marital rape)"

No Intelligible Differentia In 'Range Of Harm' Faced Between A Married & Unmarried Rape Victim; Exception Roots In The 'Hale's Principle' 

Senior Counsel Nandy stressed that the exception finds no grounds of intelligible differentia under Article 14 as the trauma, harm or duress that any woman faces in the act of rape is the same. She explained that the range of harm that a woman faces on being continuously subjected to rape by her husband would be equal to the range of harm a woman who is separated from her husband (still raped) and woman raped by a stranger would face. 

"There is no intelligible differentia in the range of harms ....the range of harm if you are repeatedly raped by my husband or separated husband or stranger is not different." 

The exception to marital rape first found its genesis in the English Doctrine of Hale, propounded by British Chief Justice Matthew Hale in 1736 where the husband cannot be held guilty of rape as wife 'gives up her body' to the husband in a marriage. 

"Women at that time were considered to be chattel," Nandy remarked. 

The CJI however interjected pointing that the Government of India in its affidavit has not relied upon the Hale's Principle and agreed that the marriage cannot a license for a woman to give away right to consent to her husband. 

"The UOI has given a go by the Hale principle, they say that they don't subscribe to the view that entering upon a wedlock gives an absolute consent for a woman to be subjected to intercourse by her husband. Therefore they accept the fact that consent is necessary. Having said that, they said there are other provisions under the DV Act, cruelty as a grounds for divorce etc," the CJI said 

Nandy replied that the other provisions under the Domestic Violence Act or Hindu Marriage Act which allow grounds for divorce have different ingredients and acts of cruelty or domestic violence lead to different harms from the act of rape on a wife. By relying on these provisions instead, the Union may be overlooking the significance of a wife's consent. 

"However, if we look at the fact that all of these other provisions are of completely different ingredients and pose completely different harms, then we can also say, I think quite safely, that they do wish for a go-by to be given to the principle of consent, when it comes to the ingredients." 

The Union in its recent affidavit opposed the Court criminalised marital rape. The Union stated that alternative remedies in law already exist to protect married women against sexual violence and attracting the offence of "rape" to the institution of marriage may be "excessively harsh" and disproportionate.

The Centre claims that to decide the matter, a holistic approach is required to be taken, after due consultation with all states. It added that the issue raised before the Court presently is more 'social' than 'legal' and criminalization of marital rape falls within the ambit of legislative policy.

Other Senior Advocates Mr Colin Gonsalves, Indira Jaisingh and Gopal Sankaranarayanan also appeared for various parties. Gonsalves highlighted how in the jurisdiction of Nepal, criminalizing marital rape was seen as a protection of the institution of marriage from abuse by the husband.

He explained, "In Nepal, it doesn't derogate the institution of marriage (criminalizing marital rape) on the other hand it gives a very nice answer -it says precisely the opposite, it says that having violence and rape within the marriage degrades the institution of marriage. And Penalising it actually purifies the institution of marriage." 

The multiple pleas raising the issue can be categorized into four kinds – first, an appeal against the Delhi High Court split verdict on the marital rape exception; second, PILs filed against the marital rape exception; third, the plea challenging a Karnataka High Court judgment which sustained the charges framed against a husband under Section 376 IPC for forcible sex with wife; and fourth, intervening applications.

The hearing will continue next Tuesday.