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The court adjourned the case for four weeks, giving the parties time to build solid arguments backed by factual submissions properly.
On October 17 2024, the Supreme Court of India heard the oral arguments for the marital rape petitions. The present case arose from multiple petitions clubbed together challenging the constitutionality of the marital rape exceptions set in Section 375 of the Indian Penal Code and Section 63 of the Bharatiya Nyaya Sanhita.
Both penal codes provide exceptions to the offence of rape. The exceptions help in the interpretation of what constitutes rape and what does not. One such exception is “marital rape”. The law provides that a husband having sexual intercourse with his adult wife is not rape. The difference between Section 375 of IPC and Section 65 of BNS is the rise in the age of consent of the wife from 15 to 18 years.
Current Criminal Law
For years, India had the Indian Penal Code as its substantive criminal which the Bharatiya Nyaya Sanhita recently replaced. The criminal law reforms were much needed (recommended by J.S. Verma Report), given that the spirit of IPC was reminiscent of colonial India. Inevitably, the marital rape exception clause (Exception 2 of Section 375 of IPC) was on the debate floor. It was wishful thinking since the government defended the spousal immunity using the Hale principle.
When the new penal code (BNS) was passed, the entire Act was stained by Exception 2 of Section 63. It had the same effect as Exception 2 of Section 375 IPC. The law exists to maintain order in society. Thus when society changes with time, the law should change. If not, it leads to injustice. Both sections 375 and 63 have caused silent injustices where even if the victim came forward they are denied justice by the letter of the law.
SC Hearing Highlights
Last Thursday, the Supreme Court of India heard arguments challenging the constitutionality of Section 63 BNS and 375 IPC and a plea to criminalise marital rape. The hearing was presided over by CJI CY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra. Senior Advocate Karuna Nundy represented the petitioners- All India Democratic Women’s Association (AIDWA). It was presented that the sections violate the fundamental rights of women. They were antithetical to the constitution of India. The Bench raised several nuanced questions such as when does an act within marriage not constitute rape and the basis for spousal immunity.
The Government affidavit cited the “Hale principle” as the basis for immunity to the husband. The principle reduces the husband and wife to a single unit by marriage. It states that the wife gives consent for a lifetime to the husband when she enters a mutual matrimony. It also provides that criminalising marital rape can be excessively harsh as married women have other laws such as the Domestic Violence Act and Dowry Prohibition Act
Future of Consent
The division bench has agreed to move the case to a constitutional bench considering its severity on women’s constitutional rights. This move is welcomed in the current legal landscape. Only the Parliament can make law but the Indian courts protect the Consitution and uphold the rule of law. But when a law violates the constitutional spirit, the courts must strike it down. A constitutional bench guarantees a thorough look into the law, its intent and interpretation against the values of our supreme Constitution.
This year has shown that despite existing laws, crimes against women are still committed. This case can create a landmark precedent for the future on consent, gender equality, immunities against rape and so much more. It can finally provide justice (at least closure) to silent survivors of rape who happen to be married and protect married women. It is not ‘excessively harsh’ to punish a rapist married to his victim. As the Karnataka High Court has stated “A man is a man; an act is an act; rape is rape”.
Retirement and Adjournment
The Chief Justice of India is set to retire this year. November 10 would be the last working day of his tenure. It would not be possible to wind up the arguments and produce a sound judgment in the limited time by the bench. Both sides have asked for more time to make submissions. It would be counterproductive to rush the counsels. It would only reflect negatively on women’s rights. The country must wait longer for proper direction on the ongoing social issue. Thus, on 23 October 2024, the court adjourned the case for four weeks, giving the parties time to build solid arguments backed by factual submissions properly.
