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“We have to resolve the matters concerning marital rape,” a bench comprising Chief Justice D Y Chandrachud and justices P S Narasimha and Manoj Misra said when senior advocate Indira Jaising mentioned the matter for hearing.
“My case deals with the child sexual abuse case,” the senior lawyer said.
The CJI said these matters are to be heard by a three-judge bench and these will be listed up for hearing after the five-judge constitution benches conclude hearing some of the listed cases.
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The petitions relating to abrogation of Article 370 of the Constitution, which had provided special status to erstwhile Jammu and Kashmir state, are also scheduled for the hearing.
The top court on March 22 had fixed the petitions on marital rape for hearing on May 9.
Prior to this, the top court on January 16 had sought the Centre’s response on the petitions pertaining to criminalisation of marital rape and the IPC provision which provides protection to a husband against prosecution for forcible sexual intercourse if the wife is an adult.
The Centre, represented by Solicitor General Tushar Mehta, had said the issue has legal as well as “social implications” and the government would like to file its response to the petitions.
One of pleas has been filed in relation to the Delhi High Court’s split verdict of May 11, 2022 on the issue.
This appeal has been filed by a woman, one of the petitioners before the Delhi High Court.
However, two HC judges — Justice Rajiv Shakdher and Justice C Hari Shankar — had concurred for granting a certificate of leave to appeal in the Supreme Court as the matter involved substantial questions of law which required a decision from the top court.
While Justice Shakdher, who headed the division bench, favoured striking down the marital rape exception for being “unconstitutional” and said it would be “tragic if a married woman’s call for justice is not heard even after 162 years” since the enactment of the IPC, Justice Shankar said the exception under the rape law is not “unconstitutional and was based on an intelligible differentia”.
Another plea has been filed by a man against the Karnataka High Court verdict which had paved way for his prosecution for allegedly raping his wife.
The Karnataka High Court had on March 23 last year said exempting a husband from allegation of rape and unnatural sex with his wife runs against Article 14 (equality before law) of the Constitution.
The set of pleas are PILs filed against the IPC provision and have challenged the constitutionality of the marital rape exception under Section 375 IPC (rape) on the ground that it discriminates against married women who are sexually assaulted by their husbands.
Under the exception given in Section 375 of the IPC, sexual intercourse or sexual acts by a man with his wife, the wife not being minor, is not rape.