Marital rape exception: Supreme Court to examine whether law can exclude non-consensual sex

New Delhi: The Supreme Court on Wednesday agreed to examine whether India’s law should continue to treat non-consensual sexual acts by a husband against his wife differently from rape committed outside marriage.

The Court is hearing petitions challenging the marital rape exception under Section 375 of the Indian Penal Code (IPC). The provision states that sexual intercourse or sexual acts by a man with his own wife do not amount to rape, subject to the conditions laid down in the law.

The issue has now come before the top court as a constitutional question: Can the law exclude non-consensual sex within a marriage from the definition of rape, and can the courts change the scope of that exception?

The Court will also hear an appeal linked to a 2022 Karnataka High Court ruling. The High Court had refused to quash rape charges against a husband accused of sexually assaulting his wife.

What is the marital rape exception?

Under the IPC, Section 375 defines rape but contains an exception for sexual intercourse or sexual acts between a man and his wife. In simple terms, the exception means that a husband cannot ordinarily be prosecuted for rape under this provision for sexual acts with his wife, even when the wife says she did not consent.

Petitioners before the Supreme Court are challenging this exception, arguing that it violates constitutional rights. They want the provision to be read down so that non-consensual sexual acts within marriage can also fall within the definition of rape.

The corresponding provision under the Bharatiya Nyaya Sanhita (BNS), which replaced the IPC, has also been challenged.

Supreme Court raises key question

During the hearing, the Bench pointed out the difficulty in allowing a prosecution for an offence that the existing law expressly excludes.

The Court asked whether, while the constitutional validity of the exception is still being decided, a person can be prosecuted for rape when Section 375 itself excludes such conduct.

“We would definitely protect the victims but is it within the domain to prosecute a person where there is direct exclusion of a person under 375,” the Court observed.

The Bench made it clear that it was not deciding the question of individual prosecutions at this stage.

“We don’t want to pronounce on that. We will take up constitutionality. We will examine the question,” the Court said.

What happened in the Karnataka case?

The Karnataka High Court had in March 2022 refused to quash rape charges against a husband accused of brutally sexually assaulting his wife.

Senior Advocate Indira Jaising, appearing in the matter, told the Supreme Court that the High Court had taken the view that prosecution could proceed in a case where a wife was allegedly treated as a “sexual slave”.

She also pointed out that the age of consent had subsequently been raised from 16 to 18 years.

What about the new BNS law?

The challenge is not limited to the old IPC.

The lawyers also raised questions about the corresponding marital rape exception under Section 63 of the BNS, which came into force after replacing the IPC.

The Bench was also apprised of issues relating to the gender-specific nature of provisions dealing with sexual offences. The lawyers discussed the marital exception in the context of other sexual offences, including gang rape.

Senior Advocate Karuna Nundy submitted that the Court would have to consider whether the exception can be interpreted in a way that is consistent with constitutional guarantees.

Court says Constitution, not social morality, will guide decision

The Bench stressed that the question before it was not simply about what society considers acceptable or unacceptable.

Instead, the central issue is whether the provision can withstand scrutiny under the Constitution.

“What is social morality? When people speak through their representatives - what we do is test it with the Constitution,” the Court observed.

The Supreme Court will now consider the constitutional validity of the marital rape exception and whether the existing provision can be interpreted differently.

Solicitor General Tushar Mehta, representing the Centre, said the Union government’s counter-affidavit had already been filed. The Court directed that copies be provided to all lawyers within two days.

The matter will be taken up for detailed arguments on a date to be fixed.