Women Talk

The criminalisation of Marital Rape: SC to Hear Petitions in March

The criminalisation of Marital Rape will have legal as well as “social implications”


The Supreme Court has asked the Centre to file its response regarding the ‘criminalisation of marital rape’ in the form of an affidavit by February 15. A three judges bench led by Chief Justice DY Chandrachud and comprising Justices PS Narasimha and JB Pardiwala have given the Centre time till February 15 to file its response. The CJI also added that the hearing for the same would begin by March 21.

What are the petitions that will be heard?

The petitions include four types of matters that will be heard regarding the ‘criminalisation of marital rape.’ These are- 

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  1. Appeal by Khushboo Saifi against the split verdict by Delhi High Court (Delhi High Court Passes Split Verdict On Criminalizing Marital Rape, Justice Rajiv Shakdher Holds Exception 2 Of Section 375 IPC Unconstitutional (livelaw.in)) In May 2022, the Delhi High Court passed a split verdict on petitions challenging exception 2 to Section 375 in the IPC (Indian Penal Code). The exception reads- “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

Justice Rajiv Shakdher struck down Exception 2 which protects men who have non-consensual intercourse with their wives. At the same time, Justice C Hari Shankar said that Exception 2 was not in violation of the Fundamental Rights of Articles 14, 19, and 21.

2. Challenging the ruling of the Karnataka High Court made in March 2022 (Karnataka Govt Supports Prosecution of Husband For Marital Rape; Files Affidavit In Supreme Court Supporting High Court Judgment. Justice M Nagaprasanna said, “A man is a man; an act is an act; rape is a rape, be it performed by a man, the ‘husband’ on the woman, ‘wife.’” The Justice refused to quash the charges of rape filed by a wife on her husband.

3. Various PILs (Public Interest Litigations) filed by activists against the marital rape exception.

4. Intervening applications.

Solicitor General Tushar Mehta, who appeared for the central Government said- “In view of the split verdict- the first option is that your lordships can ask the third judge of the High Court to decide the matter and then your lordships can have final view. Second option is to hear the case. With the first option, this Court will have the benefit of the view of High Court.” However, the Bench disagreed to this and said “We already have two contrary judgments crystallising the points. We can hear it here.”

To this, the Solicitor General added- “The central government has asked the States for their views. Apart from legal ramifications, it also has social ramifications.” He also said that consultations with other states and stakeholders were needed in this matter. The bench maintained that these points could be included in the counter affidavit filed by the Union Government, so that the issue can be discussed at once.

CJI DY Chandrachud also said “Union of India shall file counter affidavits by 15th Feb 2023. The batch will be heard on 21st March 2023. Ms. Pooja Dhar and Ms Jaikriti Jadeja have been appointed as nodal counsels. They shall prepare a common compilation. Written submissions shall be filed by 3rd March 2023.”

The issue of criminalization of marital rape is a serious one and needs a lot of attention, contemplation and deliberation before arriving at a proper conclusion. It remains to be seen what the bench will now say in its March hearing.

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Harshita Bajaj

Harshita has a background in Psychology and Criminology and is currently pursuing her PhD in Criminology. She can be found reading crime thrillers (or any other book for that matter) or binge-watching shows on Netflix when she is not in hibernation.
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