The Supreme Court has agreed to examine whether the Marital rape exception criminal liability extends to cases where non-consensual sexual acts result in a wife’s grievous injuries or death. The Court issued a notice to the Central government on a Public Interest Litigation (PIL) raising this question. A three-judge Bench comprising Chief Justice of India Surya Kant, Justice Joymalya Bagchi, and Justice V. Mohan directed that the petition be heard with the pending batch of marital rape cases. The Court has scheduled the final hearing for September 9.
Supreme Court Tags Fresh PIL with Pending Cases
The Bench directed, “Issue notice. Tag with SLP (Criminal) Nos. 4063-4064/2022.”
The PIL, filed by the Red Dot Foundation, raises an issue different from the main constitutional challenge. The pending cases seek to strike down the marital rape exception entirely. In contrast, this petition asks the Court to clarify that the exception cannot protect a husband from prosecution if forced sexual acts cause grievous injuries or death.
Petition Seeks Limited Clarification
The petitioner argues that even if the Court retains the statutory exception, it should not prevent prosecution under other criminal provisions.
According to the plea, a husband should remain liable for offences such as voluntarily causing hurt, grievous hurt, culpable homicide, or murder when non-consensual sexual acts result in serious bodily harm or death. The petition seeks to ensure that the exception does not become a blanket shield against criminal accountability.
BNS Provision Under Judicial Scrutiny
The case focuses on Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita (BNS), which replaced the corresponding provision under Section 375 of the Indian Penal Code.
The provision states that non-consensual sexual intercourse by a man with his adult wife does not amount to rape. However, the petitioner argues that lawmakers never intended this exception to block prosecution for other serious criminal offences arising from the same conduct.
Constitutional Concerns Raised
The Red Dot Foundation argues that the continued operation of the exception creates a significant legal gap. It contends that denying criminal accountability for non-consensual marital acts, even when they result in severe injuries or death, undermines constitutional protections.
Senior Advocate N.S. Nappinai and Advocate Sthavi Asthana, appearing for the petitioner, have also challenged the constitutional validity of the provision. They argue that the exception relies on the outdated colonial doctrine of irrevocable marital consent. According to the petition, this doctrine violates a married woman’s rights to equality, dignity, and bodily autonomy.
Justice Verma Committee Recommendations
The petition also highlights the recommendations of the Justice J.S. Verma Committee, constituted after the 2012 Nirbhaya case.
The Committee had recommended removing the marital rape exception from criminal law. However, Parliament retained the provision during later legislative reforms. The petitioner argues that this continuing legal position requires judicial examination, particularly regarding Marital rape exception criminal liability in cases involving grievous injuries or the death of a spouse.
The Supreme Court will hear the tagged matters together on September 9, when it considers the broader constitutional challenge as well as the specific question raised in this PIL.
