Supreme Court Pulls Up Centre For Not Clarifying Stance On Marital Rape

By Nidhi Giri
Wed, 18 Sep 2024 01:36 PM (IST)

Source:JND

The Supreme Court on Wednesday pulled up the Union Government for not clarifying its stand on the issue of criminalising marital rape. Chief Justice of India DY Chandrachud said if the Union government did not want to file a response on petitions seeking the criminalisation of marital rape, it would present oral arguments on the tenets of the law when the case comes up for hearing in the Supreme Court.

The apex court is currently dealing with a batch of petitions challenging the constitutionality of Exception 2 under Section 375 of the IPC, which exempts a husband from being prosecuted for raping his wife. These public interest litigations (PILs) argue that the exception is discriminatory against married women who are sexually assaulted by their spouses.

“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,” said a bench led by the Chief Justice of India.

The court’s statement came after senior counsel Indira Jaising, representing one of the petitioners, urged the bench to ensure an early hearing of the matter. During the proceedings, another lawyer pointed out that despite several opportunities, the Centre had yet to file its affidavit, clarifying its position on the issue.

Responding to this, the bench, which also included justices JB Pardiwala and Manoj Misra, stated that the case, which challenges a legal provision of the penal code, would proceed as a question of law.

The issue also includes the Delhi High Court’s split verdict from May 2022, which remains pending for the Supreme Court’s final judgment. In that verdict, one judge declared the 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.

Among the pending cases is an appeal by a man whose trial for raping his wife was upheld by the Karnataka High Court in March 2022. The Supreme Court stayed this trial in July 2022. The then BJP-led Karnataka government had filed an affidavit in November 2022, supporting the prosecution of the husband, stating that the IPC allows for the criminal trial of a husband for raping his wife. However, the new government in Karnataka has not clarified whether it supports this position.

The Union government has yet to finalise its stance on the matter. Last year, it informed the court that criminalising marital rape would have significant “social ramifications,” and it has since initiated consultations with states and stakeholders.

Solicitor general Tushar Mehta argued that the issue cannot be viewed solely through the lens of legal principles but must also consider the wider social consequences. Despite this, no affidavit has been filed by the Centre to clarify its final position.