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Synopsis

The Solicitor General of India today requested the Supreme Court not to take up the pleas pertaining to the issue of criminalization of marital rape in this week as the Centre is yet to file its reply on the issue.

"We have to file a reply in that, it may not be taken up this week...", SG Mehta told CJI DY Chandrachud as the bench was rising for the day.

Last week, a counsel had told the CJI led bench that no counter had been filed by the Centre till now in the batch of petitions challenging the exception 2 of Section 375, Indian Penal Code as much as it excludes married women from filing rape charges against her husband, the Chief Justice of India had responded saying Centre can argue on law if they do not intend to file their counter affidavit.

In March this year, Senior Advocate Jaising had informed the court that common compilation in the case was ready. SG Tushar Mehta, appearing on behalf of the UoI had then told the bench that their reply was also complete, just had to be vetted.

Supreme Court had issued notice in September 2023 in the appeal filed against the split verdict pronounced by the Delhi High Court in the cases pertaining to the issue of criminalization of marital rape.

The appeal has been filed by one Khushboo Saifi who was a petitioner before the High Court in the matter.

She approached the top court after the high court bench consisting of Justice Rajiv Shakdher and Justice C Hari Shankar granted a certificate of leave to appeal before the Supreme Court as the matter involved a substantial question of law.

While Justice Shakdher had held the provision unconstitutional and ordered the exception to be struck down, Justice Harishankar had held that the provision is constitutional and is based on “intelligible differentia”.

The High Court had pronounced its judgment in the batch of petitions filed by two NGOs, namely, RIT Foundation and All India Democratic Women’s Association and two individuals challenging the constitutionality of Exception 2 to Section 375 as well as section 376B of the Indian Penal Code, 1860 on the ground that it excludes marital rape as a criminal offence. The thrust of the petitions was that this exception is unconstitutional and violates the right of married women under Articles 14, 15, 19 and 21 of the Constitution. 

Justice Shakdher had declared that marital rape still amounts to rape and the impugned exception under the Indian Penal Code, 1860 is violative of the wife's right to life, right to equality & right to freedom of expression. He had concluded that the ghost of the master of the exception, Hale, needs to be “exorcised”.

Whereas, Justice Harishankar on the other hand, had referred to a myriad of examples of male and female relationships, such as mother son, girlfriend boyfriend, brother sister, etc. and had observed that the relationship between husband and wife, which emerges as a result of tying the proverbial knot is distinct from each and all of these relationships. While stressing upon the sanctity of marriage, he had held that to ignore or even to seek to undermine marital relations is to ignore plain reality.

Case Title: Khushboo Saifi vs. Union of India & Ors.