Challenge to the Marital Rape Exception

Case Description

The Supreme Court of India will decide if the exception to the crime of rape, if it is committed by a man against his wife, is unconstitutional. This exception can be found under Section 376 of the Indian Penal Code, 1860 (IPC) and is popularly known as the ‘marital rape exception’.

In 2017, a woman filed a complaint against her husband, Mr. Hrishikesh Sahoo, accusing him of multiple offences under the Indian Penal Code, 1860 (IPC), including rape, cruelty and making threats of causing harm. He was also accused of abusing their daughter and was charged with sexual assault under the Protection of Children from Sexual Offences Act, 2012 (POSCO).

While the case was pending at the Sessions Court, Mr. Sahoo filed a writ petition at the Karnataka High Court. He invoked the marital rape exception in the IPC and pled for the charges against him to be dropped. However, on February 23, 2022, Justice M. Nagaprasanna rejected the petitioner’s plea. The Court relied on a 2013 report authored by the Justice J.S. Verma Committee which recommended deleting the marital rape exception. The Court held that the exception was regressive and violated the right to equality by treating the wife as subordinate to her husband.  The High Court held, ‘no exception under law can be so absolute that it becomes a license for the commission of a crime against society’.  

Mr. Sahoo filed a Special Leave Petition at the Supreme Court of India on May 10, 2022, challenging the High Court’s decision. A 3-Judge Bench comprising former Chief Justice of India N.V. Ramana, and Justices Krishna Murari and Hima Kohli, passed an interim stay on the High Court Judgment on July 19, 2022. The State of Karnataka however, filed an affidavit expressing its support for the High Court’s decision.

Meanwhile, at the Delhi High Court, an NGO RIT Foundation, collectively with other parties, filed petitions challenging the marital rape exception.  On May 11, 2022, a Bench comprising of Justices Rajiv Shakdher and C. Hari Shankar, delivered a split verdict in the case. Justice Shakdher stated that the exception was unconstitutional as it was discriminatory and violated a woman’s bodily autonomy and expression. On the other hand, Justice Shankar held that in the institution of marriage, sexual relations whether consensual or non-consensual, are a legitimate expectation making the exception to rape legal. Both Judges granted permission to the parties to appeal the decision at the Supreme Court.  

In late 2022, Dalit activist Ms. Ruth Manorama filed a fresh petition at the Supreme Court challenging the marital rape exception. On January 9th, 2023 a Bench comprising Chief Justice D.Y Chandrachud and Justice P.S Narasimha clubbed these petitions and listed them all for hearing on March 21, 2023.