New Delhi: The Supreme Court Thursday said it will decide the constitutional validity of penal provisions in the Indian Penal Code (IPC) and the Bharatiya Nyaya Sanhita (BNS) which grant immunity from prosecution to a husband for the offence of rape if he forces his wife, who is not a minor, to have sex with him.
A bench of Chief Justice of India (CJI) D Y Chandrachud and Justices J B Pardiwala and Manoj Misra sought views of the petitioners on Centre’s contention that making such acts punishable would severely impact the conjugal relationship and cause serious disturbances in the institution of marriage.
Senior advocate Karuna Nundy, appearing for one of the petitioners, began arguments and referred to the provisions of the IPC and BNS on “marital rape”.
“It is a constitutional question. There are two judgments before us and we have to decide. The core issue is of the constitutional validity (of the penal provisions),” the CJI said.
Nundy said the court must strike down a provision, which was unconstitutional.
“You are saying it (penal provision) violates Article 14 (right to equality), Article 19, Article 21 (life and personal liberty)… Parliament intended when it enacted the exception clause that when a man engages in a sexual act with wife above 18 years of age it cannot be constituted as rape,” remarked the top court.
The bench wondered if the immunity clause in the penal codes was struck down, the offence would fall under the main provision on rape and in such a scenario whether the court “can a separate offence or adjudicate the validity of the exception (clause)”.
Arguing against the immunity clause, Nundy said, “It needs no mention that patriarchy and misogyny have no place in constitutional order.”
The bench referred to alleged criminal offences done by a husband in the quest for having non-consensual sex with wife.
“Husband demands. Wife declines. Now when husband confines her. It is wrongful confinement. When he is hurting her, it could be a simple or grievous hurt… Criminal intimidation also comes to play. Then wife succumbs and the last act is not considered rape…So your argument is that if all these are offences then why not the last main part where she succumbs. That is what you are saying,” Justice Pardiwala said.
Senior advocate Colin Gonsalves, representing a petitioner, said,
“No means no. If a woman says ‘no’, it is ‘no’ and if there is ‘rape’ within a matrimonial home then FIR has to be lodged,” he added.
The hearing would resume on October 22.
Under the exception clause of Section 375 of the IPC, now replaced by the BNS, sexual intercourse or sexual acts by a man with his wife, the wife not being minor, is not rape.
Even under the new law, Exception 2 to Section 63 (rape) says that “sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape”.
The Centre said in a fast-growing and ever-changing social and family structure, misuse of the amended provisions could not be ruled out as it would be difficult for a person to prove whether consent was there or not.
One of the pleas is related to a Delhi High Court split-verdict of May 11, 2022, on the issue.
The appeal has been filed by a woman, who was one of the petitioners before the high court.
While delivering the split judgment, Justices Rajiv Shakdher and C Hari Shankar concurred on allowing the petitioners to appeal in the Supreme Court as the matter involved substantial questions of law, requiring the top court to decide.
PTI