Supreme Court to Hold Final Hearing on Marital Rape Exception in Three Weeks

The Supreme Court of India has scheduled a final hearing in three weeks to determine the constitutional validity of the marital rape exception under Section 375 of the IPC, which is now carried forward under the Bhartiya Nyaya Sanhita. A three judge bench, led by Chief Justice of India Surya Kant and including Justices Joymalya Bagchi and V Mohana, is considering whether a husband can be prosecuted for non consensual sex while a statutory exception remains in place. The court is reviewing a batch of petitions, including a challenge to a 2022 Karnataka High Court ruling that allowed the prosecution of a husband accused of treating his wife as a sex slave, as well as a split verdict from the Delhi High Court.

During the proceedings, the bench acknowledged that a woman subjected to involuntary sex by her husband is undoubtedly a victim and that marriage does not result in the extinction of individual autonomy. However, Justice Bagchi questioned whether a prosecution could be permitted before the court decides if the exception is unreasonable or manifestly arbitrary. He noted that penal laws must factor in culpability and mens rea to avoid springing surprises upon citizens. The court also noted that violent acts such as culpable homicide or grievous injury remain covered by other penal provisions regardless of the marital rape exception.

Legal arguments varied during the hearing. Senior Advocate Karuna Nundy contended that criminalizing non consensual sex within marriage would not create a new offence but would simply remove an exemption for a specific class of people. Conversely, Solicitor General Tushar Mehta, representing the Centre, argued that it is for Parliament rather than the judiciary to decide what constitutes natural or unnatural sex. The bench stated it will answer two primary questions: whether the exception is constitutionally valid, and if it is sustained, whether a prosecution can still be pursued.