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Synopsis

The Supreme Court today commenced hearing in a batch of petitions pertaining to the issue of criminalization of marital rape. These petitions challenge the exception 2 of Section 375, Indian Penal Code as much as it excludes married women from filing rape charges against her husband.

"Will striking down the exception and criminalizing acts of non-consensual intercourse within marriage would have the possibility of destabilizing the institution of marriage?", the Chief Justice of India asked today.

In response, Senior Advocate Karuna Nundy responded that marriage is not institutional but personal.

On Justice JB Pardiwala asking if the husband demands and wife says no, the only option left for him is to get a divorce, Nundy said, "He may wait, he may be more charming, he may ask me if I have a headache or if I may change my mind..he can wait for the next day as well...".

The CJI further referred to the Union's reply in the case, saying they have submitted that consent by wife is necessary and entering into wedlock does not mean she agrees to sexual intercourse.

Arguing over the harm cause by rape, court was told today that there is no intelligible differentiae in the range of harms if a woman is raped by a stranger or my husband or by separated husband.

"If I am married and my husband commits heinous violent act of rape, it is not rape. If it is the type of rape that drives me to suicide or very serious harm, then those ingredients would also invite a charge of 498A..Sec 323 might be involved in cases of hurt..", Nundy added.

Central government has opposed before the Supreme Court a plea for criminal martial rape, saying a comprehensive, and holistic rather than a strictly legal approach was required in the matter.

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.

Said appeal has been filed by one Khushboo Saifi who was a petitioner before the High Court in the matter. Supreme Court while issuing notice in the plea challenging the Delhi High Court's split verdict, had also issued notices in similarly placed appeals filed by Hridaya Nest of Family Harmony and All India Democratic Women’s Association.

Saifi 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”.

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