DY Chandrachud not hearing petitions against marital rape anymore
The Supreme Court of India has adjourned the hearing on pleas to criminalize marital rape, with a hint that the verdict will not come before Chief Justice D.Y. Chandrachud retires on November 10. On October 17, the bench, comprising Justices J.B. Pardiwala and Manoj Misra, commenced the case hearing. So it seems their primary question was whether doing away with the marital rape exemption in Section 375 of the Indian Penal Code (which comes under the Bharatiya Nyaya Sanhita, or BNS) is going to create a new crime.
BACKGROUND
Marital rape has always been a controversy in India. Section 375 of the IPC provides a complete carve-out under which sexual contact by a man with his wife who is not a minor does not amount to rape. The exclusion has been contended to be unconstitutional on grounds of being violative of basic fundamental rights of women and discriminatory. It has been held that this clause denied women their autonomy and right to give or withhold consent and instead branded them as just objects for sexual purposes.
Following several decisions by the lower courts, and PILs raising public interest objections to this exception, the Supreme Court has called for hearings. In particular, in May 2022, the Delhi High Court gave a split verdict, one judge holding the exclusion to be unconstitutional and another upholding the practice on customary grounds of marriage.
LEGAL ARGUMENTS
Chandrachud pointed to the different likelihoods of this move going on to alter the strategic balance during his arguments. While the Chief Justice emphasized the need for a deep understanding of the consequences of making marital rape a crime, he questioned whether the judgment would undermine the institution of marriage as “such a ruling would go against the policy of things changing fast because that’s how changes in social situations are hoped to work.” The Union government had expressed some worries over the possibility of misusing legal provisions in rapidly changing social scenarios, he said.
The All India Development Women’s Association (AIDWA) was one of the petitioners represented by senior attorney Karuna Nandy, who said that nonconsensual sex within a marriage causes injury on par with rape outside the marriage. Declaring the marital rape exception unlawful, she claimed, would eliminate an artificial classification that presently shields husbands from prosecution rather than creating a new crime.
Solicitor General Tushar Mehta elaborated on the Centre’s stand that criminalizing marital rape may lead to serious problems in marriage and legislation must replace judicial interference. It again reiterated criminalizing marital rape is not needed as “current laws were adequate and provided all-around protection against sexual assault and domestic abuse”.
BENCH COMPOSITION AND PROCEEDINGS
Chief Justice D.Y. Chandrachud, along with Justices J.B. Pardiwala and Manoj Misra, placed on the bench this case. Further hearings were rescheduled by the court for four weeks to enable all parties to prepare for their submissions. The Chief Justice made it clear that he cannot wind up the matter before his retirement unless the hearing begins immediately.
CONCLUSION
This deferment by the Supreme Court of hearing on marital rape also symbolizes its long-drawn relationship in legal doctrine with cultural expectations around marriage and consent. Case critically brings out implications of how Indian law responds to consent-related concerns in marriage, amidst contemporary debates in and around women’s rights and measures against domestic abuse. The themes are likely to be probed deeper as the next hearings work on re-examining the legislation that have long been criticized for maintaining gender inequity.
Case Title: Hrishikesh Sahoo v. State of Karnataka And Ors. SLP(Crl) No. 4063-4064/2022 (and connected cases)
