Supreme Court Defers Marital Rape Case Hearing Citing Improbability Of Decision Before CJI DY Chandrachud's Retirement

The Supreme Court on Wednesday (October 23) deferred the hearing of the pleas seeking to criminalise marital rape considering the fact that the matter is unlikely to be decided before the retirement of Chief Justice of India DY Chandrachud, who is presiding the bench which started hearing the matter. 

A bench comprising Chief Justice of India DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra had started hearing the matter on October 17. Today, Senior Advocate Gopal Sankaranarayanan, who appears for another petitioner, said that he will take at least a day to complete his submissions.

Solicitor General of India Tushar Mehta, Senior Advocate Rakesh Dwivedi (for the State of Maharashtra) and Senior Advocate Indira Jaising (for a respondent-wife) also submitted that they would also require one day each to complete their submissions. Certain intervenors (men's rights bodies) also sought time to address the Court.

CJI Chandrachud noted that if the arguments cannot be completed this week, then it would be difficult to decide the matter before his retirement, which is happening on November 10, 2024. Next week the Court is closed for Diwali vacations.

"In view of the time estimate, we are of the view that it would not be possible to complete the hearings in the foreseeable future," the bench recorded in the order adjourning the hearing. The matters will be posted before another bench for a fresh hearing.

"We have deep regret. We wanted to continue here," Sankaranarayanan said after the bench dictated the order.

Last week, Senior Advocates Karuna Nundy and Colin Gonsalves had presented the arguments.

Today, Nundy persuaded the bench to hear the matter, saying that it was possible to finish the matter if everyone coordinated and stuck to the Court discipline. She said that the judgments of the Supreme Court in Joseph Shine and Independent Thought already covered the field to a great extent. However, CJI said that the Court cannot prevent the others from raising their arguments.

Solicitor General Tushar Mehta said that the Centre's stand is that marriage does not obliterate the concept of sexual consent. At the same time, the SG said that criminalising marital rape would require the Court to assess the situation from different perspectives.

"This is about the millions of women in the country, there is great urgency," Nundy urged. "Your legacy in all of these very important judgments, this is what it will bring it home to the millions of women," Nundy submitted.

"Your lordship's legacy will remain forever. Let us not ridicule it by saying....," SG said.

The petitioners challenge Exception 2 to Section 375 of the Indian Penal Code and Section 63 of the Bharatiya Nyaya Sanhita which provide that sexual intercourse/sexual acts by a man with his wife would not be "rape".

The Union in its recent affidavit opposed the Court criminalising 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 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.

Case Title: Hrishikesh Sahoo v. State of Karnataka And Ors. SLP(Crl) No. 4063-4064/2022 (and connected cases)

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