Supreme Court Issues Notice In PIL By AIDWA Challenging Marital Rape Exception In Bharatiya Nyaya Sanhita, 2023

The Supreme Court has 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 Bench headed by Chief Justice DY Chandrachud said, "It's a constitutional challenge; this becomes a live challenge now with the statutes that have been enacted. So, we will issue notice here, serve the central agency, and then maybe you can move for hearing the matter with other pending matters."

"Issue notice, returnable in July," the Bench also comprising Justice JB Pardiwala and Justice Manoj Misra, said. Senior Advocate Karuna Nundy appeared for the Petitioner. 

The PIL filed by the All India Democratic Women Association (AIDWA) through Advocate 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 plea 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. 

Cause Title: All India Democratic Women Association (AIDWA) v. Union of India [W.P.(C) No. 326/2024]