Supreme Court examines marital rape, says marriage does not mean loss of individual autonomy

The Supreme Court has taken up a batch of cases challenging and seeking interpretation of the marital rape exception, with the court deciding to first hear an appeal arising from a Karnataka High Court judgment that allowed prosecution in a case where a wife was allegedly treated as a "sex slave".

In Short

• Bench will examine if existing law already permits prosecution in marriage
• Indira Jaising defended the High Court ruling citing alleged sex slave treatment
• Justice Bagchi said marriage cannot extinguish a woman's individual autonomy

The Supreme Court on Wednesday confronted a key question in the marital rape debate: can a husband be prosecuted for rape despite the marital rape exception? The court will first hear a Karnataka case involving a man accused of treating his wife as a “sex slave”, before taking up the broader constitutional challenge to the exception.

The development, reported by Bar & Bench, came two days after the Supreme Court said it would await the Centre’s stand before deciding when to hear the broader issue of criminalising marital rape.

A bench headed by Chief Justice of India Surya Kant, along with Justices Joymalya Bagchi and V Mohana, said it would first examine the Karnataka case. The court will consider whether existing law can be interpreted to allow prosecution in such cases, as argued by senior advocate Indira Jaising, who is defending the Karnataka High Court judgment.

The court will also examine the constitutional validity of the marital rape exception. It said all sides would be heard before a decision is taken. The matters have been listed for final hearing after three weeks, on Wednesday and Thursday, according to the Bar & Bench report.

KARNATAKA CASE AT THE CENTRE OF FIRST HEARING

Jaising, appearing for the wife, told the court that the Karnataka High Court had held that prosecution under the rape law could proceed despite the marital rape exception, given the facts of the case.

She said the High Court had taken this view because the wife was treated virtually as a “sex slave”. Jaising told the Supreme Court that she wanted to defend that judgment and argue that prosecution could be maintained under the existing law without necessarily striking down the exception.

The court noted that Jaising's argument was that the existing provision could be interpreted sufficiently broadly to accommodate such conduct within the offence. She agreed, stressing that she was not asking the court to simply ignore the exception but to interpret it.

The Chief Justice said the issue raised an important question of law: whether a provision containing a clear exception could nevertheless be interpreted in a manner that allows prosecution for conduct of this nature.

TWO KEY QUESTIONS BEFORE THE SUPREME COURT

The hearing involved two broad questions:

1. Whether the existing marital rape exception can be interpreted narrowly so that certain cases can still lead to prosecution.
2. Whether the exception itself violates the Constitution and should be struck down.

The court said it would answer both questions, but would first take up the Karnataka appeal and examine the interpretation issue before dealing with the constitutional challenge.

Senior advocate Karuna Nundy, appearing for another set of petitioners, argued that the questions of interpretation and constitutionality could not necessarily be viewed in isolation. She pointed to changes made to the rape law over the years, including amendments following the Nirbhaya case.

'MARRIAGE DOES NOT EXTINGUISH INDIVIDUAL AUTONOMY'

Justice Joymalya Bagchi acknowledged the concerns surrounding the safety and security of married women and said there was no question of marriage resulting in the extinction of an individual's autonomy.

However, he said the court was dealing with a penal law and therefore had to first determine whether the exception was unreasonable or manifestly arbitrary before prosecution specifically for rape could be permitted.

The judge also pointed out that the marital rape exception does not protect a husband from every possible criminal consequence of sexual violence. Where grievous injury or death is caused, he said, other criminal provisions may apply.

The bench referred to the historic Phulmoni case, involving a very young girl who suffered a brutal sexual assault that resulted in severe bleeding and death, to underline that serious offences arising from sexual violence are not confined only to the legal definition of rape.

LAW CHANGED AFTER NIRBHAYA CASE

During the hearing, lawyers highlighted changes made to India's sexual-offence laws after the 2012 Nirbhaya case.

The definition of rape was expanded beyond penile penetration to include other forms of penetration. At the same time, the wording of the marital exception was changed from “sexual intercourse” to “sexual intercourse or sexual acts”.

Nundy also pointed out that the exception continued to have implications for other forms of sexual violence within marriage. She said the Bharatiya Nyaya Sanhita, which replaced the IPC, had also dropped Section 377, raising further questions about the legal remedies available in such cases.

The Solicitor General, Tushar Mehta, said the Union government would assist the court on the questions of law and rely on its replies already filed in the connected matters.

COURT CAUTIONS AGAINST 'SURPRISES' IN PENAL LAW

Justice Bagchi said courts must be cautious while examining penal laws because criminal provisions can have serious consequences for individuals.

He said constitutional scrutiny must take into account issues such as intention, culpability and the manner in which constitutional rights are interpreted, so that the law does not bring “surprises” upon citizens.

He also observed that a law can be unconstitutional either because the legislature lacked the power to enact it or because it violates fundamental rights.

The bench also noted that Parliament had considered the issue while enacting the BNS in 2023, with lawyers arguing that the government's position on why the exception was retained should be placed before the court.

The Union government has filed its response in the connected cases, and the court directed that copies be supplied to all lawyers involved within two days. The parties have also been directed to compile their pleadings and supporting documents before the final hearing.

- Ends