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October 17, 2024

SC On Marital Rape: Would Decide On Constitutional Validity Of Laws Giving Immunity To Husbands

Marital Rape: The bench of Chief Justice of India D Y Chandrachud and Justices J B Pardiwala and Manoj Misra sought views from the petitioners on the Centre’s contention that making such acts punishable would severely impact the conjugal relationship.

One of the recent news which has come forth is regarding a decision by the Supreme Court that it will decide on the constitutional validity of provisions existing in the Indian Penal Code (IPC) and Bharatiya Nyaya Sanhita (BNS), as these offer a husband immunity from prosecution for the offense of rape in case he forces his wife, who is above the age of 15 but below 18, into sexual intercourse.

Chief Justice of India D Y Chandrachud gave a hearing to a bench that had Justices J B Pardiwala and Manoj Misra on board. The bench sought a response from the petitioners to the center’s contention that such acts would impact marriages negatively and seriously disturb the institution of marriage.

One of the petitioners’ counsel, senior advocate Karuna Nundy, began the arguments referring to the provisions of the IPC and BNS on marital rape.

“It is a constitutional question. There are two judgments before us and we have to decide. The core issue is of the constitutional validity (of the penal provisions),” the CJI said.

Nundy said the court should declare a provision unconstitutional. “You are saying it (penal provision) violates Article 14 (right to equality), Article 19, Article 21 (life and personal liberty).

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The Parliament intended when it enacted the exception clause that when a man engages in a sexual act with wife above 18 years of age it cannot be constituted as rape,” the top court remarked.

The bench wondered if it struck down the immunity clause in the penal codes then the offence would be covered under the main provision on rape or “can the court create a separate offence or adjudicate the validity of the exception (clause)”.

Now, the exception clause of Section 375, IPC, pertaining to sexual intercourse or sexual acts by a man with his wife when she is not minor, has now been substituted by BNS and does not fall within the offense of rape.

It is under Exception 2 of Section 63 (rape) that a man having carnal knowledge or sexual act with his own wife, if she is above eighteen years of age does not commit rape, even under the new law.

The Centre said in the fast-growing and ever-changing social and family structure, misuse of the amended provisions can also not be ruled out as it would be difficult andO challenging for a person to prove whether consent was there or not.

One of the pleas is related to a Delhi High Court split verdict of May 11, 2022, on the issue. A female petitioner who is one of the petitioners before the high court has made an appeal. Justice Rajiv Shakdher and Justice C Hari Shankar concurred to grant leave of appeal in favour of the petitioners to the Supreme Court as the issues involved substantial questions of law that required a decision by the apex court.

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