The Supreme Court is hearing a batch of petitions that call for making marital rape a criminal offence. Presently, the Indian criminal law carves out an exception to the offence of rape if the alleged act is between spouses.

The Central government recently filed a counter affidavit opposing any court interference in the matter and stating that if at all marital offence is to be made a criminal offence, it is for the Parliament to take a call on this issue after considering inputs from all stakeholders.

The Centre's affidavit added that married women are already protected through other laws if they were to face such violence from their husbands, such as through laws against domestic violence and cruelty to married women.

The Central government further said that the idea of consent has to be viewed differently in a marriage since there is an expectation of reasonable sexual access from one's spouse within a marriage. It clarified that such expectations do not entitle a husband to coerce his wife to have sex against her will. However, it may be excessive and disproportionate to punish a man under anti-rape laws for such an act, the Centre said.

Track this page for live updates from the hearing today.

A Bench of Chief Justice of India (CJI) DY Chandrachud and Justices JB Pardiwala and Manoj Misra is hearing the matter.

Senior Advocate Karuna Nundy: I am appearing in the civil appeals.

CJI: Are you appearing before us in the appeal against Delhi High Court verdict?

Nundy: Yes, I am appearing.

CJI: It is a constitutional question. There are two judgments before us and we have to decide.

CJI: The core issue is of constitutional validity. Ms. Jaising your argument is that even if marital rape exception is valid, even then charges can be framed. So, first we have to apply our mind to the constitutional validity and then we can get to your arguments, Ms Jaising.

Senior Advocate Indira Jaising: There is no need to link it with restitution of conjugal rights.

CJI: Ok, we will not.

Nundy: The matter arose when All India Democratic Women Association approached Delhi High Court along with another foundation. I led the arguments before the Delhi HC.

CJI: Go to the heart of matter.

Nundy: Section 375, Exception 2 of IPC (exception if alleged act of rape is between spouses) was challenged. It is para material to Section 63 of the Bharatiya Nyay Sanhita. Both provisions and the tiny difference is laid down before the Bench.

Nundy: It's a 'yes means yes' (issue). Consent means when the woman expressly gives consent..

CJI: When the wife is below 18, it is rape and when it is above 18 it is not. So that is the difference in BNS and IPC..

Nundy: Yes, it was held by this court since it was unconstitutional..

CJI: So, age of 15 in IPC was read to mean 18 as per the SC judgment. So we have to judge whether any sexual intercourse with a wife above 18 is not rape.. That is the ground..

Nundy: Anal intercourse is exempt under Exception 2 if committed by the husband - non-consensual anal intercourse. Of course, consensual anal intercourse after Navtej (judgment) is not a crime.

CJI: So Exception 2 says that anal or vaginal intercourse with wife above 18 is not rape and that is what you are challenging.

Nundy: Yes. Even insertion of objects ...

CJI: If a man causes another person to have sexual intercourse with his wife then it will fall under Exception 2. It will definitely constitute an offence. "By a man" would mean he himself as the husband does it. If the husband causes it to be done.. then the person would be guilty of rape..

Nundy: It will turn on whether the act of abetment is sexual or not.

Justice Pardiwala: The word "sexual act" has not been defined right? How do you interpret the last part "any other person"? First part, the exception takes care but what about "any other person"?

CJI: It says "or makes her to do with any other person.."

Justice Pardiwala: Suppose a husband forces wife to act as per clause (d) (of Section 375, IPC, which says that it is rape if a man forcefully applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person) - will he (a husband) be covered under Exception 2 (marital rape exception)? No, he will not.

Nundy: He will.

Court: No, that is an incorrect reading.

CJI: No, Ms Nundy, you may have a point.. He may be covered. But the exception is overbroad since sexual acts between man and wife also covers what is there in point (d). So, what you are saying is that if clause (d) (of Section 375 IPC) is a sexual act and if such act is with third party, then the Exception 2 (marital rape exception) will protect the husband and that is why Exception 2 is constitutionally invalid on the aspect of over-broadness.

Nundy: Even if the husband is not covered.. then also, I am well since the husband can be charged separately.

CJI: But not for rape .. It will be for abetment only..

CJI: Okay we will hear post 2 PM. Please formulate grounds of challenge and let us hear then. Ms. Nundy please wrap up in an hour so that we move to the next counsel.

Court rises for lunch break.

Hearing resumes.

Senior Advocate Nundy: Under Article 13 of the Constitution, this Court must act to strike down a provision which is unconstitutional.

CJI: You are saying it violates Article 14, Article 19, Article 21.. Parliament intended when it enacted an exception - that when a man engages in a sexual act with wife above 18, it cannot be (construed) as rape.. Then, if we strike it down - then it all falls under the substantive part .. Then you have to tell us, can we create a separate offence or adjudicate the validity of the exception?

Nundy: Criminal law is nothing if it's is not specific.

CJI: How do we summarise this?

Nundy: When we are on creation of a new offence, focus is on offence, an act or thing done; clauses (a) to (d) (of Section 375, IPC) deals with the act (the offence of rape) and the second part deals with willingness or consent. There are three classes of victims or perpetrators ... First is, rapist unrelated to the victim; second is sexual intercourse without consent (with spouse) and the third is, a separated husband. So it is not a new offence.

CJI: So for a separated husband, there is an offence but a lesser degree of punishment and the legislature kind of lowers the penalty to 7 years imprisonment. But they have noted that it is not rape under the folds of marriage.

Nundy: The range of harm if i am raped by my husband, stranger or separated husband is not different. I may be in a live in relationship and if there is sex without consent, then also it's rape. If I am married and if heinous violent acts are committed on me, then it is not rape? if such an act drives me to suicide then also it attracts charge under Section 498A, IPC (cruelty to married women) .. The crux of the matter is, if the non consensual act of penetration would not be covered.. then...

CJI: Offence of rape - as it now stands - it is not only penal or vaginal intercourse ... It also about objects manipulated into any part of the body of a woman ... This is the 2013 amendment (to criminal laws), when the Exception 2 provides for exception for sexual intercourse ... It is not just penal-vaginal intercourse, but it will cover objects also ... if a husband inserts an object into the wife - if it was done by any other person, it was rape ... but if by husband, the legislature says it is not rape! If we strike down sexual acts in the exception, then?

Nundy: That is not the heart of the challenge.

Nundy: There is nothing about creating an offence because the act is itself an offence.

Justice Pardiwala: You are basically saying - act is an offence already; only the husband is excluded from the fold of it.

Nundy agrees.

Senior Advocate Nundy reads on hail principle.

CJI: Central government has not abided by the hail principle and says that a woman does not give up her consent upon marriage and that consent is needed.

CJI notes that Centre has said that they have given different remedies for married women, such as in law against domestic violence, cruelty as a ground for rape etc.

Nundy: All of these other provisions all have different ingredients, involve different harms.

Nundy: We are seeking a negative judicial review, striking down an unconstitutional provision. This is not an economic statute.

CJI: What do you have to say to this argument that by striking down the exception, and criminalising acts of non-consensual intercourse within the fold of marriage would have possibility of destabilising the institution of marriage?

Nundy reads a ruling which talks of marriage being a personal institution. Says Joseph Shine judgment also deals with this aspect.

Nundy reads from Joseph Shine judgment, in which it was observed that the Supreme Court in the Puttaswamy (right to privacy case) judgment had cautioned against the "dangers of the use of privacy as a veneer for patriarchal domination and abuse of women.”

Nundy continues reading for Joseph Shine judgment which struck down Section 497 of the IPC and effectively decriminalised adultery after noting that women are viewed as chattel or the property of husbands under this provision.

Nundy reads from the judgment:

" .... In adjudicating on the rights of women, the Court is not taking on a paternalistic role and 'granting' rights. The Court is merely interpreting the text of the Constitution to re-state what is already set in ink- women are equal citizens of this nation, entitled to the protections of the Constitution ....  It needs no iteration that misogyny and patriarchal notions of sexual control find no place in a constitutional order .... "

Nundy continues reading from judgment in the adultery case; quotes from judgment authored by Justice DY Chandrachud (as he was then) in the Joseph Shine case.

"That a woman, by marriage, consents in advance to sexual relations with her husband or to refrain from sexual relations outside marriage without the permission of her husband is offensive to liberty and dignity. Such a notion has no place in the constitutional order. Sexual autonomy constitutes an inviolable core of the dignity of every individual. At the heart of the constitutional rights guaranteed to every individual is a primacy of choice and the freedom to determine one’s actions. Curtailing the sexual autonomy of a woman or presuming the lack of consent once she enters a marriage is antithetical to constitutional values."

The principles recognised by the Court in the Joseph Shine case are the pillars on which the petitioners want to base their arguments on, Nundy says.

Nundy seeks to make arguments on fair labelling of the offence.

Nundy notes that the opposition's arguments is that rape in the context of marriage is not rape and that prosecution is provided for in other provisions when it comes to acts committed against married women.

Section 498A of the erstwhile IPC is on cruelty, not rape, Nundy says. The second part of the provision is with respect to dowry.

Nundy: The first part is on rape, but only that rape which drives her (married woman) to die by suicide. But if it does not drive her to die by suicide, then it is not covered. If it is simple hurt, it is not covered. What are the ingredients of rape - it is penetrative intercourse without consent.

Justice JB Pardiwala: Take a case - the husband demands, the wife declines. Husband goes to extent of confining wife in a room - that's wrongful confinement. Then he threatens - that's an offence. He starts assaulting, the lady succumbs. So 324-326 (IPC) has been prima facie committed. Criminal intimidation committed. All this committed for what purpose? ... Then she 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?

Nundy says yes.

Justice Pardiwala: Now assume, demand is made, none of this (hurt, criminal intimidation etc.) happens. Then what?

Nundy says, then (under present law), exception would apply.

Court asks what happens if wife goes and files an FIR, Court seeks assistance on this aspect.

Nundy: Currently my right to say no also takes away my right to say a free and joyful yes. I have been reduced to a sexual object.

Court poses query on what husband should do, should husbands file for a divorce?

Nundy: He may wait the next day, he may go for divorce, he may try being more charming, he may talk to me. He may say, 'do you think you might change you mind'?

Nundy: Our Constitution is transforming with people transforming... as Maya Angelou said.. if you know better, do better. This is not men vs. woman case but it is people vs. patriarchy case. Even a men's rights group is here in this case.

CJI: Thank you, Ms Nundy

Nundy concludes. Says petitioners' arguments would also be made by Senior Advocates Gopal Sankaranarayanan, Indira Jaising, Colin Gonsalves.

Senior Advocate Colin Gonsalves begins submissions.

Gonsalves refers to Delhi High Court's split verdict, the opinion by Justice Hari Shankar wherein he held that the exception to rape law concerning acts between spouses cannot be struck down.

Gonsalves: Justice Hari Shankar basically said a man (within marriage) is protected completely ... judgments of superior courts in at least 6-7 (foreign) jurisdictions comes to conclusion that the exception is not constitutional. The judgments are very exhaustive. We start with England and Wales. Then we go to Canada, South Africa, Australia, the United States, Ireland, Nepal etc.

Gonsalves: The Nepal Supreme Court very nicely answers the question. The Nepal court says rape degrades the institution of marriage and penalising it purifies the institution ... Then we go to France, Ireland, Germany, Netherlands ... Right across the world, you have constitutional judgments setting aside this exception ... There are international conventions which say marital rape is rape. Then we have recommendations from Justice Verma committee.

Gonsalves refers to government's argument in HC that this is a 'Western concept' etc. He says men were interviewed in UP, Haryana etc. and 40 per cent of men openly said they have relations with their wives without their wives' consent. He refers to argument that marital rape would be difficult to prove etc.

Solicitor General Tushar Mehta: Just a clarification. Central government did not argue before High Court. We never argued before the High Court.

Gonsalves: If a woman says no, it is no and if there is rape within a matrimonial home then FIR, yes ... Right across the world, if a woman says no, it is no.

Justice Pardiwala: Suppose, she goes to her parental home.. if you see Section 67 (BNS) it says.. sexual intercourse with wife during separation under a decree of separation or otherwise... Then it is an offence. So what does this "otherwise" mean ? ... Legislature in its wisdom has thought it fit to make it an offence when husband has sexual intercourse with during separation...

CJI: So even in fold of marriage. Section 67 postulates that there could be rape ... So 67 applies when they are not living together.. So exception 2 is on husband and wife, they are living together but she refuses consent and even then husband performs the act ... Here. "living separately" means not living just at different locations but with an intention not to cohabit with each other.

Court seeks clarification on Section 67 of the Bharatiya Nyaya Sanhita (BNS, which was enforced from July 1 this year) which punishes sexual intercourse by husband upon his wife during separation.

The provision says "whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished ...."

Senior Advocate Jaising says that the aspect of "or otherwise" in the corresponding provision of the now-repealed IPC (Section 376B) was introduced in 2012.

It indicates that the spouses do not have intention to cohabit, even if the spouses are technically at the same physical place, she says.

Jaising adds: The intention to have conjugal relations has ended ... It (the amendment with "or otherwise") came after the Nirbhaya case ... the key is intention.

SG Tushar Mehta: We are on a world tour here when the Indian context is different.

Senior Advocate Indira Jaising: I cannot be stopped from making a point.

SG Mehta in a lighter vein folds his hands before Senior Advocate Jaising: I was telling Senior Advocate Gonsalves. I am really fearful standing beside you (smiles).

Jaising: I am supporting you.

SG: I cannot make out when you are supporting me or opposing me. Same happened in RG Kar.

Jaising: That is indeed a huge compliment for me.

Bench smiles.

CJI: We will hear Senior Advocate Gopal Sankaranarayanan on Tuesday. I have some long flights over the weekend so I can use my time to read the submissions.

Hearing ends.