NEW DELHI: The Supreme Court on Wednesday agreed to examine whether the law excluding non-consensual sexual intercourse by a husband against his wife from the definition of rape can withstand constitutional scrutiny. The court is hearing challenges to the marital rape exception under both the Indian Penal Code (IPC) and the Bharatiya Nyaya Sanhita (BNS).The issue came before a Bench hearing a batch of petitions challenging Exception 2 to Section 375 of the IPC. The pleas also question the corresponding exception under Section 63 of the BNS and seek its reading down to allow non-consensual sexual acts within marriage to be treated as rape.The Bench indicated that the matter involved a fundamental question about the limits of judicial interpretation, particularly whether courts can permit prosecution for conduct that Parliament has expressly excluded from the offence.The court also raised the question of whether an individual could be prosecuted for marital rape while the constitutional challenge to the statutory exception is yet to be decided.“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 proceedings also covered an appeal arising from a March 2022 Karnataka high court ruling, which refused to quash rape charges against a husband accused of sexually assaulting his wife.Senior advocate Indira Jaising, appearing in the appeal, submitted that the Karnataka high court had held that prosecution could proceed where a wife was treated as a “sexual slave”. She also pointed to the subsequent raising of the age of consent from 16 to 18 years.Senior advocate Karuna Nundy argued that the constitutional challenge would require the court to consider whether the exception could be read down or interpreted in a manner consistent with constitutional guarantees.The Bench said the question before it was ultimately one of constitutional validity rather than social morality.“What is social morality? When people speak through their representatives – what we do is test it with the Constitution. It’s for the people to decide. Court says it can only speak its constitutional language,” the court observed.The Bench also made clear that it would not prejudge individual criminal proceedings while considering the larger constitutional challenge.
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“We don’t want to pronounce on that. We will take up constitutionality. We will examine the question,” the Court said.Counsel also raised questions about the BNS provisions relating to gang rape and the exception available to a husband.Solicitor general Tushar Mehta, appearing for the Union government, said its counter-affidavit had already been filed. The court directed that it be circulated among all counsel within two days.The constitutional challenge will now be heard in detail on a date to be fixed.
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