Challenge to Marital Rape Exception | Can courts permit prosecution when law does not define it as rape? Asks SC
Challenge to the Marital Rape ExceptionJudges: Surya Kant CJI, Joymalya Bagchi J, V. Mohana J
On 9 September, a Bench of Chief Justice Surya Kant and Justices Joymalya Bagchi and V. Mohana questioned whether a husband can be prosecuted for rape when the law continues to exempt sexual intercourse between a man and his wife. The Bench heard a batch of petitions challenging the marital rape exception under Section 375 of the Indian Penal Code, 1860 (IPC) and Section 63 of the Bharatiya Nyaya Sanhita, 2023 (BNS). The petitions arose following an appeal against a Karnataka High Court decision which allowed the prosecution of a husband on allegations of marital rape.
Justice Bagchi said that a person subjected to involuntary sexual intercourse within marriage was “definitely a victim”. The question, he said, was “whether the State defines it as ‘rape’ or not”. “This is the law as it stands, rightly or wrongly. It is a penal law,” Justice Bagchi said. He questioned whether a court could permit prosecution before deciding the constitutional validity of the exception.
Exception 2 to Section 375 of the IPC excludes marital rape from the definition of rape . Parliament retained it in Section 63 of the BNS, which replaced the IPC. Under the BNS, sexual intercourse or sexual acts by a man with his wife, if she is not under 18 years of age, do not constitute rape.
Interpreting the existing law
Senior Advocate Indira Jaising, appearing for the State of Karnataka, argued that the existing law could be interpreted to sustain the prosecution. She said there was enough “elasticity” in the law to support the Karnataka High Court’s decision without first striking down the marital rape exception.
Jaising also referred to the change in the age threshold under the BNS, arguing that while the BNS treats consensual sex with a person below 18 years of age as rape, it retains the marital exception for married women over the age of 18.
Solicitor General Tushar Mehta, appearing for the Union government, submitted that the exception should remain in force until the Court decides its constitutional validity. The Centre had opposed striking down the exception in an affidavit filed in October 2024.
In that affidavit, the Union said that a woman’s consent was not extinguished by marriage, but argued that treating non-consensual sexual intercourse within marriage as “rape” could be “excessively harsh and therefore, disproportionate”. It also relied on other penal provisions and the Protection of Women from Domestic Violence Act, 2005.
The Karnataka case
The appeal before the Supreme Court arose from a 2017 complaint filed by a woman against her husband, Hrishikesh Sahoo, accusing him of rape, cruelty and threats. Sahoo was also accused of sexually assaulting their daughter and faced proceedings under the POCSO. While the case was pending before the Sessions Court, Sahoo approached the Karnataka High Court and invoked the marital rape exception to seek dropping of the rape charge.
In February 2022, Justice M. Nagaprasanna rejected his plea. The High Court relied on the Justice J.S. Verma Committee’s 2013 recommendation to remove the marital rape exception. It held that the exception was regressive and violated equality by treating a wife as subordinate to her husband. The Court had observed, “no exception under law can be so absolute that it becomes a license for the commission of a crime against society”.
Sahoo challenged the decision in the Supreme Court. On 19 July 2022, a Bench comprising then CJI N.V. Ramana and Justices Krishna Murari and Hima Kohli stayed the Karnataka High Court judgement. The State of Karnataka later filed an affidavit supporting prosecution in the case.
Constitutional challenge
The appeal in favour of prosecution by State of Karnataka is part of a larger challenge to the marital rape exception. In May 2022, the Delhi High Court delivered a split verdict. Justice Rajiv Shakdher held that the exception was unconstitutional, finding that it discriminated against married women and violated their bodily autonomy. Justice C. Hari Shankar upheld the exception, holding that the distinction between married and unmarried women rested on an intelligible differentia.
A separate petition was filed by activist Ruth Manorama later in 2022. In January 2023, then CJI D.Y. Chandrachud and Justice P.S. Narasimha clubbed the petitions. The challenges raise questions about whether the exception denies married women the same legal remedies available to unmarried women, places wives on an unequal footing within marriage and violates their right to privacy.
The Court began hearing the petitions in October 2024 before a Bench headed by CJI Chandrachud. On the first day, Senior Advocate Karuna Nundy argued that the exception was patriarchal and violated the fundamental rights of married women. The hearing was deferred after lawyers on both sides said they needed more time to complete their submissions.
The matter is now scheduled for final hearing before the new Bench on 18 November.
(Note: This report was prepared from external sources and coverage of the hearing)