If Wife Says No, Is The Only Option For Husband To Seek Divorce? Apex Court Asks While Hearing Pleas Challenging Marital Rape Exception

The Bench of Chief Justice DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra will continue to hear the matter on October 22. 

During the hearing, Senior Advocate Karuna Nundy, appearing for AIDWA, a petitioner in the batch of cases, argued against the contention of the Centre that the existing laws are sufficient to deal with spousal violence. 

Justice Pardiwala gave a hypothetical situation: "Take a case- the husband demands, the wife declines. Just envisage a situation where a husband goes to the extent of confining his wife in a room. That is wrongful confinement. Then he threatens her, that is administration of threat, criminal intimidation, then he starts assaulting her; it could result in simple hurt or grievous hurt. At the end of it, the lady succumbs. The act is completed. So, Sections 323, 324, 325, and 326, as the case may be- prima facie committed. Wrongful confinement, Section 352- committed. Criminal Intimidation- committed. All of these are done so that the wife succumbs (for sex). But the last part of his act doesn't constitute an offence because he happens to be the husband. .....I am just putting your (Senior Advocate Karuna Nundy's) argument in simple language."

Nundy gave another hypothetical situation. She contended, "Where the woman (wife) says 'NO', and the intercourse happens, then all the provisions of My Lords cited will apply but, 375 of the IPC or Section 65 of the BNS will not apply because he is the husband. Then if he kills her, that (Section 302 of IPC) will apply."

Justice Pardiwala said, "This word 'NO', is something.. we will hear the other also. We are just envisaging a situation where the husband goes to this extent assaulting his wife, behaving rudely- that could constitute everything, Section 498A, 323, 324, 325, 326, etc, but when the final act (rape) is committed, you say that you can be prosecuted for all of it, but you cannot be prosecuted for this (rape)".

Justice Pardiwala tried to distinguish a situation where forceful intercourse is committed by the Husband following physical violence against the wife and a situation where the husband demands sex and the wife refuses.   

He said, "Now, take a case, where nothing of this (violence) happens. Husband says- I demand (sex), wife says no. Then what?"

"That would be exempted under the exception, my lords," Nundy replied. 

Justice Pardiwala further asked, "Correct, so how do you perceive this NO from the wife? When it comes to a marital relationship, it is the husband who is demanding, wife is in no mood, is declining. She believes, that my husband should not have done this. This is a forcible act. How do you perceive that? And the next day she goes and lodges an FIR. This is what happens. "

Nundy submitted that the answer is the Article 19(1)(a) argument. She said, "Currently, my right to say NO, takes away my right to also my right to say a free and joyful YES. Because I have been reduced by this exception to a legal subject and sexual object."

To this, Justice Pardiwala said, "So, your argument is that if it is NO, the only option for the husband is to go for divorce?"

"My Lords, he may go for divorce, he may just wait for the next day, he may be more charming. He may talk me, do you have a headache? Thats all. He might say, do you think you might change your mind", Nundy submitted in response.

At the outset, the CJI said that the core issue is constitutional validity. "We have to first apply our mind to the constitutional validity; then we have to consider Ms. Indira Jaisingh's matter (challenge by a person claiming to be victim)," the CJI added. 

Nundy submitted, "Here we challenged Section 375 Exception 2 of the Indian Penal Code (IPC). It is parimateria to exception under Section 63 of BNS." 

It is to be noted that Exception 2 of Section 63 BNS states that sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.

The CJI noted that the only difference between Section 63 BNS and Section 375 IPC is that under Exception 2, the age of 15 years is now 18 years. On perusal of the provisions, the CJI said, "We have to examine the validity of the exception."

Nundy also submitted that anal rape, if committed by the husband, is exempted under exception 2—it's not a 'sexual act.' Nundy also argued that the exception will also protect the husband from a case of gang rape. 

The CJI noted, "Your contention is that the exception is overly broad and violative of Article 14." To this, Nundy agreed. 

Following Nundy, Senior Advocate Colin Gonsalves made submissions on behalf of another petitioner. He referred to the Judgments of other countries and the view of international bodies like the United Nations on the issue. 

During the hearing, Senior Advocate Gopal Sankaranarayanan appeared for Youth for Equality, and Solicitor General Tushar Mehta appeared for the Union of India. 

After hearing the submissions at length, the Court scheduled the cases for further hearing on October 22. The sequence that has been decided for now is that the next submissions will be made by Senior Advocate Gopal Sankaranarayanan, followed by Senior Advocate Indira Jaisingh, and then SG Tushar Mehta. 

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]