The Supreme Court on Thursday said that it would decide upon the constitutional validity of laws granting immunity to husbands from trial in marital rape cases. The matter has been listed for October 22.
"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)," CJI Chandrachud said.
Referring to the non-consensual offences conducted by the male spouses against their wives in the absence of any law that criminalises marital rape, Justice Pardiwala said, "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."
Under the exception clause of Section 375 of the IPC, now replaced by the BNS, sexual intercourse or acts by a man with his wife, provided the wife is not a minor, do not constitute rape.
The central government cautioned against the potential for misuse of the amended provisions in a rapidly evolving social and family landscape and said that it may be challenging for individuals to prove the presence or absence of consent.
"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 apex court noted.
The Centre had earlier opposed the criminalisation of marital rape in order to protect the institution of marriage. "Given the nature of the marital institution in our socio-legal milieu, if the legislature is of the view that, for preservation of the marital institution, the impugned exception should be retained, it is submitted that it would not be appropriate for the SC to strike down the exception," it had 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)," CJI Chandrachud said.
Referring to the non-consensual offences conducted by the male spouses against their wives in the absence of any law that criminalises marital rape, Justice Pardiwala said, "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."
Under the exception clause of Section 375 of the IPC, now replaced by the BNS, sexual intercourse or acts by a man with his wife, provided the wife is not a minor, do not constitute rape.
The central government cautioned against the potential for misuse of the amended provisions in a rapidly evolving social and family landscape and said that it may be challenging for individuals to prove the presence or absence of consent.
"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 apex court noted.
The Centre had earlier opposed the criminalisation of marital rape in order to protect the institution of marriage. "Given the nature of the marital institution in our socio-legal milieu, if the legislature is of the view that, for preservation of the marital institution, the impugned exception should be retained, it is submitted that it would not be appropriate for the SC to strike down the exception," it had said.
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