Advocate Karuna Nandy, appearing for All India Democratic Women’s Association, one of the petitioners, had requested that the matter be decided by the Supreme Court. Senior advocate Gopal Sankaranarayanan said that the matter is pending for the last three years. The court then agreed to hear it next February.
Apex court agreed to examine the issue and posted the matter for hearing in February 2023. It kept all the matters relating to the issue of marital rape pending before it. The SC bench comprising Justice Ajay Rastogi and Justice BV Nagarathna issued the notice.
On May 11 2022, the Delhi HC delivered a split verdict on petitions challenging the constitutional validity of the exception in the Indian Penal Code which exempts men from being prosecuted for marital rape.
Two judges of the bench, Justices Rajiv Shakdher and C Harishankar, hearing the matter, differed on whether this provision should be scrapped or not. While Justice Shakdher held that Section 375 is unconstitutional, Justice Shakdher held that the exception is based on a “sensible distinction”.
The provision under consideration here is Section 375 of the IPC which defines rape, but has exceptions for sexual intercourse between a married couple. The exception reads, “Sexual intercourse by a man with his wife, the wife not being less than fifteen years of age, is not rape.”
The decision came on petitions filed by the RIT Foundation and the All India Democratic Women’s Association, as well as two individuals, who challenged the constitutional validity of the second exception to Section 375 of the IPC.
The apex court, in a 2017 judgment, had read out this exception to raise the age of consent for intercourse within marriage from 15 years to 18 years. However, the case pertained to child marriage and not the wider issue of marital rape.
Written by : Karan Suri
