The Supreme Court Thursday sought to know whether it would be creating a new offence by striking down the provision in penal law which prevents wives from prosecuting their husbands for rape. A three-judge bench presided by CJI D Y Chandrachud and comprising Justices J B Pardiwala and Manoj Misra began hearing petitions challenging the exception clause of Section 375 of the IPC, now BNS, under which sexual intercourse or sexual acts by a man with his wife, the wife not being minor, is not rape. “You say that striking down the marital rape exception does not create a new offence. Parliament intended, when it enacted the exception, that an act of sexual intercourse or a sexual act by a man with a woman who is his wife above the age of 18 should not be regarded as constituting the offense of rape. Now if we strike down the exception… will we be creating a new offence? Does the court have the power independently to test the validity of the exception?” CJI Chandrachud asked. Appearing for some of the petitioners, senior advocate Karuna Nundy pointed out to the bench the question was also raised in Independent Thought vs Union of India. The SC had then said “It needs no mention that patriarchy and misogyny have no place in constitutional order.” She said that under the Hale’s principle, which was followed in England, a husband could not be held guilty for raping his wife. The CJI said “interestingly, the government of India in its counter affidavit has given up the Hale’s principle”. “They said that they don’t subscribe to the view that entering upon a wedlock is an absolute consent for a woman to be subjected to intercourse by a husband. They accept the fact that consent is necessary… Having done that, they said there are other provisions such as domestic violence act, cruelty as a ground for divorce, and so on and so forth,” CJI Chandrachud said. Nundy said that the government had only given it up “in part”, adding, “however, if we look at the fact that all of these other provisions are on completely different ingredients and cause completely different harms”. The bench also pointed to Centre’s contention that striking down the exception and criminalising acts of non-consensual intercourse within the fold of marriage would have the possibility of destabilising the institution of marriage. Nundy said, “Marriage is not institutional but personal – nothing can destroy the institution of marriage except a statute that makes marriage illegal and punishable.” Senior advocate Colin Gonsalves, appearing for some petitioners, referred to judgments in foreign countries to argue that the exception is not constitutional. The court also referred to Section 67 of the BNS which makes sexual intercourse by husband upon his wife “who is living separately, whether under a decree of separation or otherwise, without her consent” punishable and said it recognises an offence within marriage but where the parties have decided not to cohabit or end conjugal relations. “Even within the fold of marriage, the legislature has thought fit to say sexual intercourse by husband upon his wife during separation is an offence,” Justice Pardiwala said and asked what “otherwise” meant. The CJI said, “Section 67 postulates that the marriage is subsisting, because it says husband with his wife.” The hearing will resume on October 22.
