If the wife refuses to have sex, should the husband ask for divorce? Who said what in SC during the hearing in marital rape case

New Delhi: The Supreme Court heard petitions demanding that marital rape be considered a crime. The Supreme Court will look into the constitutional validity of the provision providing exception to marital rape. The Chief Justice said that the main issue is about the constitutional validity of this legal provision. The court wanted to know the opinion of the petitioner on the stand of the Central Government on this matter. Know what happened in the hearing on the issue of marital rape.

‘What impact will this have on the institution of marriage?’

In this case, the bench of Chief Justice DY Chandrachud, Justice JB Pardiwala and Justice Manoj Mishra heard. The court asked the petitioners what effect declaring marital rape as a crime would have on the institution of marriage. The court questioned whether it would be creating a separate crime if it removed the statutory exception preventing a husband from being prosecuted for rape. As the hearing began, the court asked the petitioners, ‘You have to tell us whether we can create a separate offence.’

What arguments were given by the petitioners?

Senior advocate Nandi, appearing for the petitioners, argued that the Supreme Court should eliminate the exception that prevents a wife from filing a rape case against her husband. CJI Chandrachud asked whether such a decision would not lead to creation of a separate offense by the court. Responding to this, Nandy said that the offense still exists and explained the provisions of Section 375 of the IPC.

Pointing to the existing law on rape, he/she said, ‘There are three categories of victims or perpetrators…First is rape unrelated to the victim, second is non-consensual sexual intercourse (with spouse) and third is estranged husband, Therefore this is not a new crime.

She further said, ‘The extent of harm is no different if I am raped by my husband, a stranger or an estranged husband. I can be in a live-in relationship and if sex happens without consent, it is also rape. If I get married and heinous, violent acts are committed on me, is that not rape?”

‘Can’t use this as a cover for privacy’

The court then sought Nandy’s stand on the argument that criminalizing non-consensual sexual intercourse within the scope of marriage would be likely to destabilize the institution of marriage. In response, Nandy said that the Supreme Court itself has held that privacy cannot be used to abuse women. “In KS Puthaswamy, it was held that the veil of privacy cannot be used to abuse women’s rights or cause gender-based violence,” she said.

‘A matter of public versus patriarchy’

On this, Justice Pardiwala asked, ‘So you are saying that when a wife refuses sex, the only option left for the husband is to ask for divorce?’ Nandi replied, “Wait for the next day, or be more attractive, or talk…Our Constitution is changing as people change…It is not a matter of men versus women, but it is people versus patriarchy.” Men’s rights group is also here in this matter.

Discussion regarding section 67 of BNS

The court also discussed Section 67 of the BNS or Section 376B of the IPC, which criminalizes sexual intercourse by a husband with his/her wife who is living separately. Justice Pardiwala said, “Suppose she goes to her parents’ house… If you look at section 67, it says… sexual intercourse with the wife while living separately under the order of separation or Otherwise…then it is a crime. So what does this “otherwise” mean? “Living separately here does not just mean living in different places, but not cohabiting with each other,” CJI Chandrachud said. To live with intention.”

The central government has supported the existing law

In response to petitions seeking to criminalize marital rape, the central government has supported the existing rape law that provides exceptions for sexual relations between husband and wife, saying the issue is a social one rather than a legal one. Is. Marital rape is excluded from the scope of “rape” through Exception 2 to Section 375 of the IPC. A similar provision is also present in the newly created Indian Judicial Code, which replaced the IPC on July 1 this year.

In the year 2022, the Delhi High Court had given a separate verdict on whether marital rape should be considered a criminal offense or not. After this the matter reached the Supreme Court in September the same year. Now this matter will be heard next Tuesday.