Supreme Court to fix marital rape hearing date after Centre’s response
A three-judge Supreme Court bench headed by the Chief Justice of India is set to hear the Union government's stand before fixing a schedule for final arguments in the batch of petitions challenging the marital rape exception
A senior advocate representing one of the petitioners requested that the matters be listed for final hearing in November; the Bench declined to defer the case to that date
The batch comprises around eight matters, arising principally from a 2022 Delhi High Court split verdict, along with more recent petitions including one appeal against a Karnataka High Court ruling
The Union government has so far filed only a preliminary objection in the matter and has not yet submitted a substantive response on the constitutional validity question
Exception 2 to Section 375 IPC / Section 63 BNS — The Marital Rape Exception
Exception 2 to Section 375 of the erstwhile Indian Penal Code (IPC) excluded non-consensual sexual intercourse by a man with his own wife from the legal definition of rape, provided the wife was above a specified age. This exception has been carried forward, with a modification, into Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023, which replaced the IPC with effect from July 1, 2024.
Key Details
- Under the original IPC provision, the age threshold for the exception was 15 years (i.e., sexual intercourse with a wife aged 15 or above was exempted from being classified as rape)
- The Supreme Court, in Independent Thought v. Union of India (2017) 10 SCC 800, read up this age threshold from 15 to 18 years, holding that sexual intercourse with a minor wife below 18 constitutes rape regardless of marital status
- The BNS, 2023 formally codifies this 18-year threshold in Exception 2 to Section 63, meaning the marital exception now applies only to sexual intercourse with an adult wife (18 years or above)
- The core constitutional challenge before the Supreme Court concerns the exception as applied to adult wives — i.e., whether a husband can be criminally exempted from a rape charge solely by virtue of the marital relationship
The Supreme Court proceedings will determine whether this exception, now located in Section 63 BNS, survives constitutional scrutiny; the Union's forthcoming response is expected to state the government's position on whether striking it down should be left to the legislature.
Constitutional Grounds of Challenge — Articles 14, 15, and 21
Petitioners challenging the marital rape exception argue it violates the right to equality (Article 14), the prohibition on discrimination (Article 15), and the right to life and personal liberty, including bodily autonomy and dignity (Article 21). These are the standard constitutional hooks used to test the validity of any statutory classification or exemption in Indian constitutional law.
Key Details
- Article 14 requires that any classification made by law satisfy the twin test of intelligible differentia and rational nexus with the object sought to be achieved — the 2022 Delhi High Court split hinged on whether marital status is a valid "intelligible differentia" for exempting non-consensual sex from rape law
- Article 21's expanded interpretation (including bodily autonomy, dignity, and the right to say no) draws on the Supreme Court's privacy jurisprudence in K.S. Puttaswamy v. Union of India (2017), which recognised privacy — including decisional and bodily autonomy — as a fundamental right flowing from Article 21
- Article 15(1) prohibits discrimination on grounds of sex; petitioners argue the exception discriminates against married women by denying them a legal protection available to unmarried women
The eventual final-hearing arguments will centre on whether the marital exception can survive Article 14/15/21 scrutiny, making this one of the clearer current pending cases testing the "reasonable classification" doctrine in contemporary constitutional law.
The 2022 Delhi High Court Split Verdict
In May 2022, a two-judge bench of the Delhi High Court delivered a split verdict on petitions challenging the marital rape exception, with one judge holding the exception unconstitutional and the other upholding it — resulting in no binding decision and clearing the way for direct appeal to the Supreme Court.
Key Details
- One judge held the exception unconstitutional, reasoning that it denied married women equal protection against non-consensual sex available to unmarried women
- The other judge upheld the exception, reasoning that the legislative classification between marital and non-marital sexual relations was based on an intelligible differentia (recognising marriage as a distinct social/legal relationship) and did not violate Article 14
- A split verdict at the High Court level does not become binding precedent; it typically results in the matter being referred to a larger bench or, as here, taken up in appeal before the Supreme Court
- The present matters bundle this 2022 reference together with fresh writ petitions and at least one State High Court appeal, reflecting how a single constitutional question can arrive at the Supreme Court through multiple procedural routes (direct writ under Article 32, and appeal under Article 136)
The current listing dispute — whether to hear the Centre first or fix a November date — concerns how this inherited, procedurally complex batch of matters (arising from the 2022 split verdict plus newer petitions) will finally be argued and decided.
- Bench: three-judge bench headed by the Chief Justice of India, along with two other judges
- Union government's filing status: preliminary objection filed; substantive counter-affidavit on constitutional validity not yet filed
- Age threshold in the marital rape exception: raised from 15 to 18 years by Independent Thought v. Union of India (2017) 10 SCC 800, since codified in Exception 2 to Section 63, BNS, 2023
- Governing provision: Exception 2 to Section 375, IPC (pre-July 2024) / Exception 2 to Section 63, BNS, 2023 (from July 1, 2024)
- Delhi High Court split verdict: May 2022, two judges, no binding majority
- Number of matters in the current batch: approximately eight, including a Karnataka High Court appeal
- Constitutional articles invoked by petitioners: Articles 14, 15, and 21