New Delhi: The Central government has not yet finalised it stand on the issue of marital rape.
However, the Supreme Court made it clear on Wednesday that it will decide the legality of immunity granted to husbands from prosecution for marital rape solely on legal principles, even if the government does not take a stand on the issue.
“It’s a matter of law. They will have to argue on the point of law if they have chosen not to file an affidavit,” a bench led by Chief Justice of India (CJI) D Y Chandrachud said.
Senior counsel Indira Jaising, representing one of the petitioners, urged the CJI-headed bench – which also includes justices JB Pardiwala and Manoj Misra — to ensure an early hearing of the matter.
Though the case figured in the court’s list of business on Wednesday, it could not be heard due to day-long hearing in a matter relating to customs appeals.
Another lawyer pointed out that despite several opportunities, the government is yet to file its affidavit to clarify its position.
The apex court said that the case, which challenges a legal provision of the penal code, will proceed as a question of law.
Also Read: Marital Rape Not An Offence If Wife Is 18 Or Above, Says Allahabad High Court
Several PILs have been filed in Supreme Court, challenging the constitutionality of Exception 2 under Section 375 of the IPC, which exempts a husband from being prosecuted for raping his wife.
These petitions argue that the exception is discriminatory against married women who are sexually assaulted by their spouses.
Delhi High Court had delivered a split verdict on this issue in May 2022, which is pending for Supreme Court’s final judgment.
One judge had declared marital rape exception as “morally repugnant,” while the other judge ruled that the exception was valid and could continue to exist without violating the law.
One pending case is that of an appeal by a man whose trial for raping his wife was upheld by Karnataka High Court in March 2022, but the trial was stayed by Supreme Court in July 2022.
The Central government had told the court last year that criminalising marital rape will have significant “social ramifications.” The government initiated consultations with states and stakeholders.
