The Supreme Court on Thursday began hearing arguments in the petitions seeking criminalisation of marital rape in India. [Hrishikesh Sahoo v. Union of India and Anr]

A Bench of Chief Justice of India (CJI) DY Chandrachud and Justices JB Pardiwala and Manoj Misra asked the petitioners to address what effect the criminalisation of marital rape would have on the institution of marriage.

The Court queried whether it would be creating a separate offence if it strikes down the legal exception that prevents wives from prosecuting their husbands from rape.

"You have to tell us can we create a separate offence," the Court asked the petitioners as arguments began today.

In response to the petitions demanding criminalisation of marital rape, the Central government has backed the existing rape law that carves out an exception for sexual relations between a husband and wife, and asserted that the issue is more of a social one than a legal one.

Marital rape is excluded from the ambit of "rape" by way of Exception 2 to Section 375 of the Indian Penal Code (IPC).

A similar provision is also present in the newly enacted Bharatiya Nyaya Sanhita (BNS), which replaced the IPC on July 1 this year.

In 2022, the Delhi High Court delivered a split verdict on whether marital rape should be a criminal offence. The matter then reached the Supreme Court in September that year.

Senior Advocate Karuna Nundy, appearing for the petitioners, today began arguments in the case and submitted that the top court must strike down the exception that prevents a wife from prosecuting her husband for rape.

However, CJI Chandrachud asked whether such decision would not lead to creation of a separate offence by the Court. In response, Nundy said that the offence exists even now and explained the provisions of Section 375 IPC. Pointing to the existing law on rape, she said,

"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."

She went on to say,

"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 its rape. And if I am married and if heinous, violent acts are committed on me, then it is not rape?"

The Court then sought to know Nundy's position on the argument that criminalisation of non-consensual intercourse within the fold of marriage would have the possibility of destabilising the institution of marriage.

In response, Nundy said it has been held by the top court itself that privacy cannot be used to abuse women.

"In KS Puttaswamy, it was recognised that the screen of privacy cannot be used to abuse the rights of woman or cause gender based violence," she submitted.

Justice Pardiwala then asked,

"So you are saying that when a wife refuses sex, the only option for husband is to ask for divorce?"

Nundy responded,

"Wait for the next day. Or be more charming. Or talk to me...our Constitution is transforming with people transforming...This is not a men versus women case, but it is a people versus patriarchy case. Even a men's rights group is here in this case."

Senior Advocate Colin Gonsalves, who argued after Nundy, focused on the legal position existing in foreign countries.

When Gonsalves was arguing, a discussion also ensued on Section 67 of the BNS or Section 376B of IPC, which criminalises a husband's sexual intercourse with a wife who is living separately.

"Suppose she goes to her parental home...if you see Section 67 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," Justice Pardiwala observed.

Adding to it, CJI Chandrachud said,

"Here living separately means not living just at different locations but with an intention not to cohabit with each other."

The Court will continue hearing arguments on Tuesday next week.