The Supreme Court on Wednesday commenced hearing on a batch of petitions challenging the constitutional validity of Exception 2 of Section 375 of the Indian Penal Code (now Section 63 of BNS), which granted immunity from prosecution to a husband for having sexual intercourse with his wife, older than 15 years.
The Bench of Chief Justice of India DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra heard the arguments made by Senior Advocate Karuna Nandy, representing the All India Democratic Women’s Association (AIDWA) and certain other individuals, as well as Senior Advocates Colin Gonsalves, Indira Jaisingh and Gopal Sankaranarayanan, appearing for various parties.
The Bench further took into consideration an affidavit filed by the Union of India on October 3 on the matter.
Vehemently opposing the petitions, the Central government contended that making such acts punishable would severely impact the conjugal relationship and cause serious disturbances in the institution of marriage.
Noting that the issue was primarily social rather than legal, the Centre said the jurisdiction to criminalise such acts (marital rape) did not lie with the Supreme Court but rather with the legislature.
The Apex Court today sought the views of the petitioners on the Central government’s submissions.
Senior Advocate Karuna Nandy contended that Exception no 2 under the definition of rape as per the old and new penal provisions violated the fundamental rights of a woman under Articles 14, 21 and 19 of the Constitution and reduced her to a mere sexual object.
This case was not about women versus men. It was about people vs patriarchy, noted the Senior Counsel.
Section 63 of the BNS and erstwhile Section 375 of IPC exclude non-consensual sex between a married man and his wife from the definition of ‘rape’.
Exception 2 of Section 375 of the Indian Penal Code (now Section 63 of BNS) states that sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.
The Apex Court asked the petitioners to address the point on whether the Court could create an offence. Nandy replied that non-consensual sex was already an offence and but of the Exception, a husband would be liable for rape. Hence, it was not the creation of a new offence, rather the taking away of an unreasonable classification and arbitrary exception.
Justice Pardiwala, pondering on the repercussions of criminalising marital rape, asked Nandy about a situation where a wife filed an FIR against her husband.
He said in case a husband demanded and wife declined. She believed that the husband should not have done it and next day she lodged FIR, then how should this be perceived?
Nandy referred to the fundamental right of freedom of speech and expression under Article 19(1)(a), asserting that the presence of the exception hindered a wife’s right to express consent for sexual acts in a marriage.
She said a wife’s right to say no took away her right to also say a free and joyful yes. Because she had been reduced under this exception to a legal subject and a sexual object.
Justice Pardiwala asked whether it meant that if it was ‘No,’ then the only option left for the husband was to file a divorce?
The Senior Counsel submitted that the husband has to respect the ‘No’ of the wife. He may wait till the next day. He can talk to his wife, ask her whether she was having a headache. He can ask whether the wife wanted to change her mind?
The Bench asked whether Section 63(b) of BNS would come within the meaning of ‘sexual acts’. If the husband forced the wife to have sex with any other man apart from him, would that also be exempted under the exception?
Section 63(b) BNS states that a man commits rapes if he ” inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person.”
The Bench agreed to the petitioner’s argument that the description of sexual acts under clauses (a)-(d) which constituted an offence of rape could be read to mean the sexual acts under the exception also.
The Bench remarked that sexual acts (a)-(d) may not be exhaustive but they were sexual acts, it comprehended that under (b) that was also sexual act and would put the husband under exception 2.
Nandy clarified that this would mean that a gangrape including the husband on the wife would also be exempted under Exception no. 2.
Justice Pardiwala noted that exception 2 under the definition of rape would practically give immunity to the husband for committing forceful sex, while all the other associated or ‘concomitant acts’ like wrongful confinement, grievous hurt, abuse and assault would still make him liable under respective penal provisions.
The Senior Counsel stressed that the exception did not find grounds of intelligible differentia under Article 14 as the trauma, harm or duress that any woman faced in the act of rape was the same. She explained that the range of harm that a woman faced on being continuously subjected to rape by her husband would be equal to the range of harm a woman who was separated from her husband (still raped) and woman raped by a stranger would face.
The exception to marital rape was propounded by British Chief Justice Matthew Hale in 1736 in the English Doctrine of Hale. It said that a husband could not be held guilty of rape as wife ‘gave up her body’ to the husband in a marriage.
Nandy contended that women at that time were considered to be chattel.
However, the CJI pointed out that the Government of India disagreed with the Hale’s Principle. The Centre did not subscribe to the view that entering upon a wedlock gave an absolute consent for a woman to be subjected to intercourse by her husband, he added.
The Central government had submitted in its affidavit that there was no necessity to criminalise marital rape as suitably designed punitive measures were already in place to deal with the sensitive issue, referring to provisions under the Domestic Violence Act and the Hindu Marriage Act.
The Senior Counsel submitted that these provisions under the Domestic Violence Act or the Hindu Marriage Act, which allowed grounds for divorce, have different ingredients and acts of cruelty or domestic violence lead to different harms from the act of rape on a wife. By relying on these provisions instead, the Union may be overlooking the significance of a wife’s consent, she added.
Senior Advocate Colin Gonsalves contended that in Nepal, criminalising marital rape did not derogate the institution of marriage. Having violence and rape within the marriage degraded the institution of marriage. Penalising it actually purified the institution of marriage, he added.
The batch of petitions heard by the Apex Court today included those challenging the Delhi High Court split verdict on the marital rape exception, seeking marital rape exception, challenging a Karnataka High Court judgment which sustained the charges framed against a husband under Section 376 IPC for forcible sex with wife, and intervening applications in the matter.
The hearing will continue on October 22.