Why Supreme Court deferred marital rape criminalisation case

The Supreme Court on Wednesday adjourned the hearing of a batch of 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 deferred the matter after counsel appearing for both sides gave it a timeframe of the arguments to be made in the case.

With the lawyers submitting that they would require one day each to argue, the Court indicated that a decision cannot be rendered before the retirement of CJI Chandrachud on November 10.

"Mr Gopal Sankaranarayanan says he will require one day. This will be followed by submissions by Senior Advocate Indira Jaising and other counsel will take a day each....hence it will not be possible to complete hearing in the foreseeable future," the CJI said.

The Bench said the matter would be heard by a new bench after four weeks.

Senior Counsel Sankaranarayanan earlier submitted that with the amount of material that has been placed on record in the case, he would require one day to make his arguments in the case.

"It is a substantial issue and my conscience will not permit to try to stifle it... there is much to be said," the senior counsel said.

Solicitor General Tushar Mehta also submitted that he would require one day to make his arguments.

"The ramifications are very long and it is not our case that one can have sexual intercourse without consent ... but it is a polycentric problem. Your lordships will have to examine several aspects," Mehta submitted.

With other counsel providing similar timeframe, CJI Chandrachud said the matter would have to be deferred.

After the Court adjourned that matter, Senior Advocate Karuna Nundy attempted to persuade CJI Chandrachud to continue hearing the matter.

"Your legacy would warrant this case to be heard for the millions of women," the senior counsel said.

At this, SG Mehta said,

"Your lordship's legacy will be remembered and this statement need not be made."

On October 17, the Court had started hearing arguments in the matter.

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.

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.

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.