Supreme Court To Start Hearing Pleas Challenging Marital Rape Exception Tomorrow

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 led by CJI DY Chandrachud comprising Justices JB Pardiwala and Manoj Misra is seized of the constitutional validity of the exception as well as Section 9 of the Hindu Marriage Act (relating to restitution of Conjugal Rights).

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 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.

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.