- By Shubham Bajpai
- Wed, 09 Sep 2026 06:25 PM (IST)
- Source:JND
- Centre states marital rape criminalization is Parliament's decision.
- Supreme Court hears pleas on marital rape exception.
- Matter listed for further hearing in three weeks.
The Centre on Wednesday told the Supreme Court that any decision to criminalise marital rape or not is a prerogative of the legislature, not the executive or judiciary.
The submission came while the top court bench of Chief Justice of India Surya Kant, Justices Joymalya Bagchi and V Mohana, was hearing a batch of pleas challenging and supporting the MRE (marital rape exception) (Exception 2) under Section 375 IPC (now Section 63 of BNS).
The bench has listed the matter for hearing in three weeks. During the hearing, Justice Bagchi asked whether, even though there is no union of individual autonomies on account of marriage, a husband can be prosecuted for raping his wife until the court adjudicates on the constitutional validity of the MRE.
She added, "Where there is a clear definition and an exception under Section 375, the issue is about the remit of that exception...One is the safety and security of married women...We fully appreciate the submission that there is no question of marriage resulting in a union of individual autonomy."
"Point well taken. Now see the law as it stands. It is a penal law. And therefore, rightly or wrongly, before a constitutional court renders a verdict that the exception was unreasonable or manifestly arbitrary, can we permit a prosecution on that score?" she further asked
The bench said it will examine two questions: whether a prosecution can be sustained even if the marital rape exception survives and whether the exception itself is constitutionally valid.
The CJI posed a pointed question if a husband can be prosecuted for an act as defined in Section 377 of IPC (rape) against the wife; Solicitor General Tushar Mehta, appearing for the Centre, replied in the negative.
The SG pointed out to an earlier court finding that carnal intercourse between a husband and wife can not be characterised as unnatural. Mehta further argued that it is for Parliament to decide what is 'natural' and 'unnatural'.