This Case Will Bring Home Your Legacy For Millions Of Women: Petitioner In Marital Rape Case Insist For Hearing By CJI Chandrachud’s Bench, Case Adjourned Beyond CJI's Retirement
The Supreme Court's Bench of Chief Justice DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra adjourned the hearing of the batch of petitions challenging the constitutional validity of the Marital Rape Exception (MRE) contained in Bharatiya Nyaya Sanhita, 2023 (BNS) and the corresponding provision in the erstwhile Indian Penal Code, citing paucity of time to complete hearing before CJI Chandrachud retires.
The matter that was heard for a day earlier, and was to be heard further today, was adjourned after the Senior Advocates appearing in the matter indicated that they will take at least two days on the Petitioners' side and more than two days on the Respondents' side.
It is to be noted that, CJI Dy Chandrachud is retiring on November 10. The Bench has adjourned the matter by four weeks.
In an attempt to convince the Bench led by CJI Chandracuhd to continue hearing the matter, Senior Advocate Karuna Nundy, appearing for AIDWA, submitted, "Your legacy and all important judgments, this is what will bring it home, to the millions of women around the country."
The Solicitor General Tushar Mehta interjected, "Your Lordship's legacy will remain forever. Let us not ridicule... by saying that this judgment will.."
Nundy said so, while submitting that, "The decisions that my lord, yourself (CJI), made in a number of judgments, not just Joseph Shine, but Independent Thought and others, cover the field."
To this, the CJI said, "That's your submission, but we can't prevent everyone else from arguing."
At the outset, Senior Advocate Gopal Sankaranarayanan, appearing for one of the petitioners and who was to commence arguments today, submitted that based on the volume of material that he has produced, it will take a time. "Just wanted to clarify there are two binders; both have been placed," he added.
To this, the CJI asked, "How long will you take, about an hour or so?"
"With the amount of material that has been placed, it will take about a day. This is a substantial issue. My conscience would not allow me to try and stifle it. There is much to be said. There are 18 notes to compress everything," Sankaranarayanan submitted.
When the Bench asked Solicitor General Tushar Mehta about how long he would take, he said, "The ramifications are very wide. It is not our case that one can have sexual intercourse, without consent...but it is a poly-centric problem. Your Lordships will have to examine several aspects."
The CJI then asked, "How long will you take?"
"About a day," the SG responded.
Further, Senior Advocate Rakesh Dwivedi, appearing for one of the respondents, also submitted that he would require a day too, for his submissions.
The SG informed the Bench that Senior Advocates Maninder Singh and Arvind Datar are also appearing for the respondents.
Senior Advocate Indira Jaising, appearing for one of the respondents, also informed the Bench that she would be requiring a day for her submissions.
The CJI said, "Unless we finish the hearing this side of the vacation. There is no question of us delivering the judgment."
The Court noted, "We have heard submissions by Ms. Karuna Nundy, learned Senior Counsel and Mr. Collin Gonsalves, learned Senior Counsel. Mr. Gopal Sankaranarayanan, learned Senior Counsel, states that a day will be required for his arguments. The SG and Jaisingh will also take a day long for arguments....in view of the time estimate, we are of the view that it will not be possible to complete the hearings in the foreseeable future. Therefore, we direct that the proceedings be listed after four weeks."
Nundy requested, "Very briefly, if we stick to the court discipline, in fact, if everybody would coordinate, this matter can be definitely finished by Friday evening, if people cooperate and remain disciplined. There is also the urgency..."
"This is not personal. This is about the millions of women in the country, My Lord," Nundy submitted.
To this, the CJI said, "We have to hear arguments on both the sides."
Accordingly, the Court listed the matter for hearing after four weeks.
On October 17, the Bench started hearing the batch of petitions. Justice Pardiwala had asked the petitioner, "If wife says no, is the only option for husband to seek divorce?"
Notably, earlier, this month, the Centre had defended the legal exception decriminalizing marital rape in an affidavit, arguing that striking down Exception 2 of Section 375 of the Indian Penal Code (IPC) would have far-reaching consequences for the institution of marriage. In its affidavit, the Centre had emphasized that criminalizing marital rape could severely affect conjugal relationships and lead to significant disturbances within the institution of marriage. It had expressed concern that such a change could be misused and create challenges in proving consent within marital relationships. "The misuse of the amended provisions cannot be ruled out, as it would be difficult and challenging for a person to prove whether consent was there or not," the Center had stated, cautioning that the issue has far-reaching socio-legal implications that require careful consideration.
Pertinently, on May 17, the Court had issued notice in a Public Interest Litigation (PIL) challenging the Marital Rape Exception (MRE) contained in Exception 2 to Section 63 of Bharatiya Nyaya Sanhita, 2023 (BNS). This legal provision exempts acts that would otherwise constitute rape from prosecution if committed by a man on his adult wife.
The PIL filed by the All India Democratic Women Association (AIDWA) through AoR Ruchira Goel also contests the constitutionality of Section 67 of the BNS. This Section imposes a penalty ranging from two to seven years for a married man's commission of the offence of rape on his separated wife—a penalty lower than the mandatory minimum ten-year sentence otherwise applicable to the offence of rape under Section 64 of the BNS.
The Petition highlights that AIDWA previously challenged the marital rape exception under the Indian Penal Code, 1860 (IPC) (Exception 2 to Section 375 and Section 376B) before the Delhi High Court, resulting in a split decision. This challenge has also been brought before the Supreme Court via Civil Appeal No. 4926 of 2022, awaiting final adjudication. "The Petitioner has also challenged the constitutionality of Section 221 of the Bharatiya Nagarik Siiraksha (Second) Sanhita, 2023 (BNSS) as a necessary consequence of the challenge to Section 63 of the BNS, which facilitates the lenient regime under Section 67 of the BNS, prohibiting a court from taking cognizance of the offence thereunder without "prima facie satisfaction of the facts which constitute the offence upon a complaint..by the wife"," the petition reads.
Furthermore, the plea states, "These three provisions ("impugned provisions") make consent to sex by a married woman, irrelevant, and grant blanket immunity to one class of perpetrators—married men—from prosecution for rape. Further, the MRE has at it score, the perpetuation of an unconstitutional objective of subordinating married women's dignity, bodily integrity, and autonomy in pursuit of an unconstitutional object - the purported sanctity of the marital institution over the individual rights of the women forming part of the institution." The Petitioner argued that the MRE violates Articles 14, 15(1), 19(1)(a), and 21 of the Constitution of India. It further stated that striking down the MRE would not amount to the creation of a new offence or require the Court to engage in judicial legislation.
Another plea has been filed by a man, namely, Hrishikesh Sahoo, against the Karnataka High Court judgment, which paved the way for his prosecution for allegedly raping his wife. The Karnataka High Court had on March 23, 2023, that exempting a husband from the allegations of rape and unnatural sex with his wife runs against Article 14 (equality before law) of the Constitution.
One of the pleas is related to the Delhi High Court's split verdict of May 11, 2022, on the issue. The appeal has been filed by a woman, namely Ojaswa Pathak, who was one of the petitioners before the Delhi High Court.
The set of pleas are PILs filed against the IPC provision and have challenged the constitutionality of the marital rape exception under Section 375 IPC (rape) on the ground that it discriminates against married women who are sexually assaulted by their husbands.
Cause Title: Ojaswa Pathak v. Union of India, Hrishikesh Sahoo v. State of Karnataka, & All India Democratic Women Association (AIDWA) v. Union of India [W.P.(C) No. 250/2019, SLP (Crl) No. 4063-4064/2022 & W.P. (C) No. 326/2024]