Supreme Court Agrees To Consider Early Listing Of Pleas Challenging Marital Rape Exception

The Supreme Court on Wednesday stated that it would consider listing the pleas concerning the constitutional validity of Exception 2 to Section 375 of the Indian Penal Code which provides exception to non-consensual matrimonial sex from the offence of rape. The batch of petitions was to be listed on May 9, 2023 after it could not be heard by a bench comprising Chief Justice DY Chandrachud, Justice PS Narasimha, and Justice JB Pardiwala on March 21, 2023 owing to Justice Pardiwala's absence. 

After the matter had still not been listed, it was mentioned today before a bench comprising CJI DY Chandrachud, Justice PS Narasimha, and Justice Manoj Misra. Senior Advocate Indira Jaising, appearing in a plea challenging 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, requested for an early hearing by saying that the facts of the case involve allegations of child sex abuse as well.

Earlier, Jaising had requested for her matter to be listed separately and not with the batch of petitions challenging the marital rape exception. She had said–

Today, Jaising urged the court to hear the matter after the ongoing Constitution Bench matters get over. Currently, a Constitution bench comprising Chief Justice of India DY Chandrachud, Justice Hrishikesh Roy, Justice PS Narasimha, Justice Pankaj Mithal, and Justice Manoj Misra is hearing a batch of pleas to determine if a driving licence for a “light motor vehicle” be used to drive a vehicle whose weight is 7500 kg. 

CJI DY Chandrachud responded–

"Marital rape we will have to resolve first...We will list it. After the CB hearings are over, maybe after that we'll keep it. I'll talk to the Registrar in the evening."

The Chief Justice asked Advocate Karuna Nundy, who was appearing for a Dalit anti-caste and women’s rights activist challenging the constitutional validity of the marital rape exception–

"Ms Jaising will be leading on your side?"

Nundy responded–

"Ms Jaising will be dealing with law as it currently stands. Ours is on constitutionality."

The bench then remarked that it would list the matter.

The batch of petitions before the court includes four kinds of matters– first is the appeal against the Delhi High Court split verdict on the marital rape exception; second are PILs filed against the marital rape exception; third is the plea challenging the Karnataka High Court judgment which sustained the charges framed against a husband under Section 376 IPC for forcible sex with wife; and the fourth are intervening applications.