Can marital rape exception shield husbands for injuries or deaths of wives? Supreme Court to examine

The Supreme Court recently issued notice to Central government on a petition seeking a declaration that the marital rape exception does not bar prosecution where forceful, non-consensual sexual acts by a husband result in bodily injuries or death to his wife. [Red Dot Foundation v. Union of India]

In an order passed on July 16, a Bench of Chief Justice Surya Kant and Justices Joymalya Bagchi and V Mohana tagged the petition with the pending batch of cases challenging the constitutional validity of the marital rape exception.

The Court also directed that all the matters be taken up for final hearing on September 9.

"Issue notice. Tag with SLP (Criminal) Nos. 4063-4064/2022," the Court ordered.

The petition filed by NGO Red Dot Foundation raises an issue distinct from the one involved in the pending marital rape cases.

While the main batch asks the Supreme Court to criminalise marital rape and declare the marital rape exception under the law itself as unconstitutional, the present plea seeks a clarification that even if the exception remains in force, it should not shield a husband from prosecution where forceful, non-consensual sexual acts result in bodily injuries, grievous hurt or death.

Under Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita (BNS), non-consensual sexual intercourse or sexual acts by a man with his adult wife do not amount to the offence of rape.

A similar exception earlier existed under Section 375 of the Indian Penal Code (IPC).

As per the petition, although the exception excludes the offence of rape, it should not be interpreted as barring prosecution under criminal law provisions dealing with offences such as causing hurt, grievous hurt, culpable homicide or murder where forceful, non-consensual sexual acts result in bodily injuries or death.

According to the plea, the continued existence of the exception has led to serious legal consequences, including denial of criminal liability for non-consensual sexual acts within marriage, even in cases involving grave injury or death, thereby creating a legal vacuum.

Besides seeking the above clarification, the petition has also challenged the constitutional validity of the marital rape exception. It argues that the provision is rooted in the colonial doctrine of irrevocable marital consent and violates married women's rights to equality, dignity and bodily autonomy.

The plea further points out that although the Justice JS Verma Committee, constituted after the 2012 Nirbhaya gang rape, recommended deleting the marital rape exception, parliament retained it while amending the criminal law in 2013.

Senior Advocate NS Nappinai with advocate Sthavi Asthana appeared for the petitioner.

[Read Order]