On October 17, 2024, the Supreme Court of India commenced hearings in Hrishikesh Sahoo v. State of Karnataka & Ors. (SLP(Crl) No. 4063-4064/2022) and connected cases, which is a batch of petitions challenging the marital rape exception under Indian criminal law. The primary contention is the constitutionality of Exception 2 of Section 375 of the Indian Penal Code (IPC) (now Section 63 of the Bharatiya Nyaya Sanhita (BNS)), which exempts non-consensual sex between a husband and wife from being classified as rape, provided the wife is over the age of fifteen.

The petitioners argue that this exception violates women’s fundamental rights under Articles 14, 19, and 21 of the Constitution. They submitted that the exception reduces women to mere “sexual objects” within marriage, thereby denying them the right to consent and dignity.

A three-judge bench comprising Chief Justice of India DY Chandrachud, Justices JB Pardiwala, and Manoj Misra is hearing the matter. The bench is examining whether the Court has the power to criminalize marital rape, a concern raised during the proceedings. Petitioner contended that non-consensual sex is already a crime under general rape laws, and the removal of the marital exception would not create a new offense but would eliminate an unconstitutional distinction.

Justice Pardiwala raised concerns about the practical consequences of criminalizing marital rape, particularly in cases where a wife might file an FIR following a single incident of non-consensual sex within marriage. The Court also pondered the broader scope of “sexual acts” under Section 63(b) of the BNS, noting that the current exception might even extend to situations like gang rape involving a husband and others, leading to the exemption of the husband from liability under marital rape provisions.

The Government of India, through its Solicitor General, has opposed the petitions, arguing that existing legal remedies, such as the Domestic Violence Act and divorce laws under the Hindu Marriage Act, adequately address the issue of sexual violence within marriage. The Union emphasized that criminalizing marital rape would be “excessively harsh” and that the matter should be left to legislative policy following consultations with all states.

Advocate Colin Gonsalves, appearing for another Petitioner, pointed out that countries like Nepal have already criminalized marital rape, noting that such laws protect the sanctity of marriage rather than eroding it. The petitioners further argued that the historical roots of the marital rape exception—based on the 18th-century Hale’s Principle, which presumed that a wife gives irrevocable consent to her husband upon marriage—are outdated and inapplicable in a modern legal framework.

The hearing marks a significant moment in the ongoing judicial review of marital rape laws, which was initiated following a split verdict by the Delhi High Court and subsequent appeals. The matter also includes a challenge to a Karnataka High Court ruling that sustained charges against a husband for raping his wife under Section 376 IPC. The Supreme Court proceedings are expected to address multiple pleas, including public interest litigations (PILs) and appeals related to the marital rape exception.

The next hearing is scheduled for Tuesday, October 24, 2024, where the bench will continue deliberations on whether the marital rape exception should be struck down as unconstitutional.

– Deeksha Rai