Supreme Court questions logic behind exception to marital rape in penal law

• The Supreme Court on Thursday (October 17, 2024) questioned the logic behind a penal law which considers wrongful confinement, criminal intimidation and assault of a wife by her husband as offences.

Highlights:

• On October 17, 2024, the Supreme Court raised critical questions regarding the penal law that differentiates between wrongful confinement, criminal intimidation, and assault against a wife, while not recognizing forced sex in marriage as a crime. Justice J.B. Pardiwala highlighted this inconsistency during hearings on petitions seeking the criminalization of non-consensual sexual acts within marriage.

Context of the Hearings:

• The petitions aim to challenge the legal exceptions that allow non-consensual sexual acts by a husband to be excluded from the definition of rape, asserting that this violates women's rights to bodily integrity, autonomy, and dignity.

Centre's Position:

• The Centre submitted an affidavit arguing that criminalizing non-consensual sexual acts in marriage could disrupt conjugal relationships and cause significant disturbances within the institution of marriage.

Legal Provisions Under Scrutiny:

• The petitions target exceptions in:
• Section 375 of the Indian Penal Code (IPC): Excludes non-consensual sexual intercourse by a husband with his wife (over 15 years) from being classified as rape.
• Section 63 of the Bharatiya Nyaya Sanhita (BNS): Similar provisions apply for wives over 18 years.

Chief Justice's Observations:

• Chief Justice D.Y. Chandrachud noted that the definition of rape extends beyond peno-vaginal intercourse to include acts such as the insertion of foreign objects. He pointed out the legal inconsistency where such actions are deemed rape if perpetrated by a stranger, but not by a husband.

Argument Against the Centre’s Affidavit:

• Senior advocate Karuna Nundy, representing the petitioners, countered the Centre's assertion that removing the marital rape exception would undermine marriage. She argued that protecting married women from rape is essential for preserving the institution of marriage itself, asserting that sexual autonomy is a fundamental right.

Implications of Marital Status:

• The discussion addressed whether a husband's marital status should grant him immunity from rape charges. Nundy emphasized that a woman’s consent to sexual activity must be unequivocal and voluntary, regardless of her marital status.

Additional Insights:

• Justice Pardiwala questioned how consent could be accurately assessed within the context of marriage. Nundy maintained that the harm inflicted on a woman by rape—regardless of the perpetrator's identity—remains consistent.

Request for Further Review:

• Senior advocate Rakesh Dwivedi, representing the State of Maharashtra, suggested referring the matter to a Constitution Bench. The Chief Justice indicated that the current three-judge Bench would consider this point.

Prelims Takeaways:

• Section 375 of the Indian Penal Code (IPC)