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The hearing in the Supreme Court regarding ‘Marital Rape’, which is considered one of the most sensitive subjects of the Indian judicial system and social structure, has once again intensified. During the hearing on this serious and sensitive matter in the Supreme Court of the country, the Central Government has presented its stand in very clear and strong words. Solicitor General Tushar Mehta, appearing on behalf of the Central Government, bluntly told the Supreme Court that criminalizing marital rape or making changes in the laws related to it is entirely the domain of the legislature (Parliament) and the executive of the country, and not the Supreme Court. This legal and social debate has once again raised the question whether lack of consent even within the sacred relationship of marriage should be considered a crime or should a solution be found within the ambit of existing criminal laws. The eyes of the entire country are currently focused on these important and far-reaching consequences hearings going on in the Supreme Court.
An important three-member bench comprising Chief Justice of India (CJI) Surya Kant, Justice Joymalya Bagchi and Justice V. Mohana, hearing the case, has directed that the final hearing on all the petitions seeking to declare marital rape as a crime will be held on regular basis on Wednesday and Thursday, exactly three weeks from now. The main legal challenge before the Court is the validity of Exception 2 to Section 63 of the Indian Penal Code (BNS), which is a modified version of the exception to marital rape provided for in Section 375 of the erstwhile Indian Penal Code (IPC). According to the existing legal provision, if an adult man has physical relations with his adult wife (i.e. a wife whose age is not less than 18 years) even against her will, then it is not legally categorized as rape. Several petitions challenging this legal exception have been pending in the court for a long time, on which the court has now decided to give concrete arguments in the summer or in the coming working days.
During the hearing of the case, Justice Joymalya Bagchi, a member of the bench, raised an important question with a very logical and humane approach. He asked that if within a marriage relationship a woman is forced to have sexual intercourse without her will and consent, is the woman not a victim? Justice Bagchi emphasized that the courts are always committed to protect the victims, and the main question is whether state governments or the law of the country include such an act in the definition of rape or not. Along with this, he also clearly commented that the institution of marriage does not at all mean that a woman’s personal freedom, her dignity and her right to physical autonomy have been lost forever. The court said it would examine in depth whether the existing legal immunity for marital rape could permit a criminal prosecution by an aggrieved wife against her husband, and whether this immunity was fully consistent with the rights to equality and liberty guaranteed by the Constitution of India.
Senior advocate Karuna Nandi, appearing in the court on behalf of the petitioners, presented her forceful arguments and said that if a husband is cruel to his own wife or causes serious physical injuries to her, then he cannot claim any kind of legal exemption merely in the guise of ‘sacred relationship of husband and wife’. He said that the relationship of marriage does not give license to any person to have sexual relations with his wife without her will or consent or to cause serious physical and mental harm to her. The petitioners argue that in the eyes of the law, the sanctity of the body and self-respect of every citizen should be paramount, no matter what social relationship the person is in.
The Central Government has reiterated its earlier stand in this entire matter and said that it is not at all in favor of making marital rape a separate and new criminal offence. The Government believes that if marital rape is criminalised, it could seriously affect the institution of family and the stability of marriage relationships in Indian society. The government affidavit also said that complaints or disputes related to sexual relations within marital life should be resolved within the ambit of the Domestic Violence Act or other existing statutory provisions, rather than treating them as common street-crimes or common rape offences. Remember that in the year 2022, the Delhi High Court had given a divided verdict on this sensitive issue, after which this complex legal dispute reached the Supreme Court in the form of appeal, and now the highest court of the country is moving towards giving the final verdict on it.