Supreme Court to Probe the Marital Rape Exception in India’s Criminal Code

The Supreme Court of India, in a hearing that felt part courtroom drama and part societal reckoning, said it will take up the thorny question of whether the marital‑rape exemption in Section 375 of the Indian Penal Code can stand up to the Constitution.

At the same time, the Court will hear an appeal stemming from a March 2022 judgment of the Karnataka High Court, which had refused to quash rape charges against a husband accused of brutally assaulting his wife. The two issues are being considered together, because both hinge on the same statutory carve‑out – Exception 2 of Section 375 – that currently says sexual intercourse with one’s own wife is not rape.

Petitioners, ranging from women’s rights groups to individual activists, have filed public interest litigations that argue the exemption violates fundamental rights. They also point to a similar clause in the newly drafted Bharatiya Nyaya Sanhita (BNS) – Section 63 – and ask that it be read down so that non‑consensual acts inside marriage fall within the ambit of rape.

During the hearing, the bench wrestled with a basic, yet profound, legal puzzle: can a penal provision that expressly excludes a conduct be interpreted in a way that still allows prosecution for that very conduct? “We would definitely protect the victims, but is it within the domain to prosecute a person where there is a direct exclusion under Section 375?” the judges queried.

Senior Advocate Indira Jaising, representing the wife in the Karnataka case, reminded the Court that the High Court had already held that a wife treated as a “sexual slave” could be prosecuted. She also noted that the age of consent had been raised from 16 to 18 years, underscoring the changing landscape of consent law.

Senior Advocate Karuna Nundy added that the challenge is not merely about social morality; it is about whether the statute can survive the litmus test of constitutional guarantees. “What is social morality? When people speak through their representatives – we test it with the Constitution,” the Court observed.

The Union government, represented by Solicitor General Tushar Mehta, submitted its counter‑affidavit, which the Court asked to be shared with all counsel within two days. The bench made clear that it does not intend to pre‑judge individual prosecutions while it decides the larger constitutional question.

Further arguments are expected on the scope of the marital exception under the BNS, especially in cases of gang‑rape where a husband might be implicated. The matter has been adjourned, with detailed arguments to be scheduled for a future date.