SC to decide validity of immunity to husbands in marital rape offence
New Delhi: The Supreme Court on Thursday said it will decide the constitutional validity of penal provisions in the Indian Penal Code and the Bharatiya Nyaya Sanhita which grant immunity from prosecution to a husband for the offence of rape if he forces his wife, who is not a minor, to have sexual intercourse with him. The hearing in the matter would resume on October 22.
A bench of Chief Justice of India D.Y. Chandrachud and Justices J.B. Pardiwala and Manoj Misra sought views of the petitioners on the Centre’s contention that making such acts punishable would severely impact the conjugal relationship and cause serious disturbances in the institution of marriage.
Senior advocate Karuna Nundy, appearing for one of the petitioners, began arguments and referred to the provisions of the IPC and BNS on marital rape. The court must strike down a provision, which was unconstitutional, the counsel said. “It is a constitutional question. There are two judgments before us and we have to decide. The core issue is of the constitutional validity (of the penal provisions),” the CJI said.
The bench said: “You are saying it (penal provision) violates Article 14 (right to equality), Article 19, Article 21 (life and personal liberty)... Parliament intended when it enacted the exception clause that when a man engages in a sexual act with wife above 18 years of age it cannot be constituted as rape.”
The bench referred to alleged criminal offences done by a husband in the quest for having non-consensual sex with wife. “Husband demands. Wife declines. Now when husband confines her. It is wrongful confinement. When he is hurting her, it could be a simple or grievous hurt... Criminal intimidation also comes to play. Then wife succumbs and the last act is not considered rape...So your argument is that if all these are offences then why not the last main part where she succumbs. That is what you are saying,” Justice Pardiwala said.
Senior advocate Colin Gonsalves, representing a petitioner, said: “No means no. If a woman says no, it is no and if there is ‘rape’ within a matrimonial home then FIR has to be lodged.”
Under the exception clause of Section 375 of the IPC, now replaced by the BNS, sexual intercourse or sexual acts by a man with his wife, the wife not being minor, is not rape.