Marital Rape Law Change Is Parliament's Call, Centre Tells Supreme Court

The Centre has told the Supreme Court that the decision to criminalise marital rape rests with Parliament and the executive, not the judiciary. The submission was made on Wednesday before a bench headed by the Chief Justice of India, which has scheduled final hearings on a batch of related petitions to begin in three weeks.

The petitions challenge Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita (BNS), a provision that carries forward the colonial-era marital rape exception. Under this exception, sexual intercourse by a man with his own wife, provided she is above 18, does not constitute rape.

During the proceedings, Justice Joymalya Bagchi remarked that marriage cannot mean the "extinction of a woman's autonomy." He also noted that a woman subjected to involuntary sexual intercourse within marriage is undoubtedly a victim, and asked whether the State chooses to define such an act as rape.

The court has framed two key questions for examination: whether prosecution can proceed even if the exception remains on the statute books, and whether the exception itself is constitutionally valid.

Senior Advocate Karuna Nundy, appearing for one of the petitioners, argued that a husband who inflicts grievous injury on his wife cannot claim legal immunity solely on the basis of the marital relationship. She contended that marriage does not grant a licence for sexual acts against a wife's will or for causing severe physical harm.

The central government has previously stated in an affidavit that it does not favour making marital rape a distinct criminal offence. It has argued that such a move could destabilise the institution of marriage and that matters of sexual relations within marriage should be addressed under existing legal provisions.

The case has reached the Supreme Court after the Delhi High Court delivered a split verdict on the issue in 2022.