The Supreme Court has agreed to examine whether the marital rape exception can be invoked to protect a husband from criminal prosecution when a forced, non-consensual sexual act causes serious injuries or results in the death of his wife.
The Court issued notice to the Union government on a petition filed by the Red Dot Foundation, which has sought a clarification that the exception cannot operate as a shield against charges relating to bodily harm, grievous hurt, culpable homicide or murder.
A Bench comprising Chief Justice Surya Kant and Justices Joymalya Bagchi and V. Mohana directed that the matter be heard alongside the pending challenges to the constitutional validity of the marital rape exception. The connected cases have been listed for final hearing on September 9.
The petition raises a question that is separate from the broader constitutional challenge to marital rape. While the pending cases seek to have the exception itself struck down and marital rape criminalised, the present plea argues that even if the exception continues, it should not prevent prosecution for other offences when non-consensual sexual acts cause grave physical harm or death.
Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita provides that sexual intercourse or sexual acts by a man with his adult wife do not constitute rape. A similar provision existed earlier under Section 375 of the Indian Penal Code.
The petition contends that the exclusion of rape as an offence cannot mean that a husband is immune from liability for the consequences of violence inflicted during a forced sexual act. According to the plea, criminal provisions dealing with injuries, grievous hurt, culpable homicide and murder must continue to apply where the conduct causes such consequences.
It has also been argued that the present legal position can create a serious gap in criminal law by denying accountability for non-consensual sexual acts within marriage even when they result in severe injury or death.
The petition separately challenges the constitutional validity of the marital rape exception, arguing that it rests on the outdated idea that marriage implies permanent and irrevocable consent. It claims the provision infringes the rights of married women to equality, dignity and bodily autonomy.
The plea also refers to the Justice J.S. Verma Committee’s recommendation to remove the marital rape exception following the 2012 Delhi gang rape case. Despite that recommendation, the exception remained in place when Parliament amended the criminal law in 2013.
