Can husband be tried for marital rape if law says not offence: Supreme Court
The Supreme Court is hearing a batch of petitions on the constitutional validity of the marital rape exception, and posed the specific question of whether a husband can be prosecuted for rape of his wife even while the statutory exception describing such acts as "not an offence" remains on the books.
The Court decided to first take up an appeal from a Karnataka High Court judgment that had allowed the trial of a man accused of treating his wife as a "sex slave," before proceeding to the larger constitutional challenge to the exception itself.
The Karnataka High Court had earlier held that "a brutal act of sexual assault on the wife, against her consent, albeit by the husband, cannot but be termed to be a rape," and the Supreme Court has so far declined to stay that trial.
The batch includes matters arising from a 2022 split verdict of the Delhi High Court on the same question, along with fresh petitions filed later, and is being heard together as a combined constitutional challenge.
The bench indicated it would ascertain the Union government's stand before scheduling final arguments on the broader constitutional question.
The Marital Rape Exception — Exception 2 to Section 375 IPC / Section 63 BNS
Exception 2 to Section 375 of the Indian Penal Code, 1860 (now replicated as an exception under Section 63 of the Bharatiya Nyaya Sanhita, 2023, which replaced the IPC from July 2024) excludes sexual intercourse or sexual acts by a man with his own wife from the definition of rape, provided the wife is not below a specified age. This is the "marital rape exception" being constitutionally challenged.
Key Details
- Under the IPC, the exception applied where the wife was not below 15 years of age; the Bharatiya Nyaya Sanhita, 2023 raises this threshold to 18 years, aligning it with the general age of consent and the Protection of Children from Sexual Offences (POCSO) Act, 2012.
- Petitioners argue the exception violates Article 14 (equality before law) by creating an unreasonable classification between married and unmarried women, and Article 21 (right to life and personal liberty, including bodily autonomy) by denying married women the same protection against non-consensual sex available to others.
- The Union government has previously opposed reading down the exception outright, arguing the issue has wider social implications for the institution of marriage and that criminal law reform of this kind is a matter for the legislature.
The current hearing is the latest stage of this long-pending constitutional challenge — the Court is now grappling with whether prosecutions can proceed under the existing (unread-down) law in specific fact situations even before the larger validity question is finally decided.
Delhi High Court's 2022 Split Verdict
In May 2022, a two-judge bench of the Delhi High Court delivered a split verdict on petitions (filed by, among others, the RIT Foundation and the All India Democratic Women's Association) seeking to strike down the marital rape exception. One judge held the exception unconstitutional as violative of Article 14; the other upheld it, reasoning that the distinction between sexual acts within and outside marriage rested on an "intelligible differentia" — the constitutional test for a valid classification under Article 14.
Key Details
- A split verdict (judges disagreeing) does not settle the law; it required a fresh appeal to the Supreme Court, which is how the matter reached the apex court.
- The "intelligible differentia" test comes from Article 14 classification jurisprudence — a classification is valid only if (a) it is founded on an intelligible differentia distinguishing grouped persons from others, and (b) that differentia has a rational nexus with the object sought to be achieved by the law.
- The Delhi High Court matters were later clubbed with other pending challenges, including one originating from the Karnataka High Court, before the Supreme Court.
The batch of matters currently before the Supreme Court is a consolidation of exactly this kind of divided lower-court opinion — reflecting how significant constitutional questions on which High Courts disagree are resolved through Supreme Court adjudication under its appellate and constitutional jurisdiction.
Judicial Interpretation vs Legislative Reform of Criminal Law
The case illustrates the constitutional principle that courts can strike down or "read down" a statutory provision found to violate fundamental rights (Part III of the Constitution), but cannot themselves enact a new offence — since Article 20(1) bars conviction for an act that was not an offence under the law in force at the time it was committed (protection against ex-post-facto criminal liability).
Key Details
- If the Supreme Court eventually strikes down the marital rape exception, it would remove the shield that currently exempts such acts from Section 63 BNS/Section 375 IPC, effectively making the general rape provision applicable to married couples going forward — but Article 20(1) constrains any retrospective application to acts predating such a ruling.
- This is why the Court's present, narrower question — whether an existing prosecution (like the Karnataka "sex slave" case) can proceed under the general rape provision despite the exception, based on interpretation of the facts — is being examined separately from the broader question of striking down the exception itself.
- The Union's stated preference for legislative rather than judicial reform reflects the broader separation-of-powers position that criminalising new conduct is ordinarily a function of Parliament, not the judiciary.
The Court's approach of first resolving the individual Karnataka case, and separately consulting the Union before scheduling the constitutional question, shows this line being carefully managed — adjudicating the specific dispute without prematurely deciding on the exception's overall validity.
- Age threshold in the marital rape exception: below 15 years under IPC Section 375; raised to below 18 years under BNS Section 63 (in force from 1 July 2024).
- Delhi High Court split verdict on the exception delivered: May 2022.
- Karnataka High Court ruling permitting trial of the husband in the "sex slave" case: March 2022 (subsequently unstayed by the Supreme Court).
- Constitutional articles at the centre of the challenge: Article 14 (equality), Article 15 (non-discrimination), Article 21 (life and personal liberty).
- Article 20(1) of the Constitution bars conviction for an act not an offence under the law in force at the time it was committed — relevant to how any future striking-down of the exception would apply.
- The batch of matters includes both the 2022 Delhi High Court reference and later, freshly filed petitions on the same question.