Supreme Court will test the validity of the laws giving exemption to husband in marital rape, know what is the whole matter

New Delhi: The Supreme Court has said that it will examine the constitutional validity of the provision of keeping husband in the category of exception in rape cases in IPC and BANS. There is a provision in Exception 2 of Section 375 of IPC and Section 63 of BNS that if the wife is an adult then the forced relationship of the husband with her will not amount to rape. This provision has been challenged in the Supreme Court. The bench led by Supreme Court Chief Justice DY Chandrachud wanted to know the opinion of the petitioner on the stand of the Central Government.

what did the center say

The Center has said in its affidavit that if the husband is brought under the ambit of rape in relation to his/her wife, it will have an adverse effect on married life. The institution of marriage will be in danger. The Supreme Court asked the petitioner to present his/her stand on this stand of the Central Government. On behalf of the petitioner, senior advocate Karuna Nanda presented before the court the provision of making exception for the husband in the case of rape in the IPC and BNS Act.

What is the matter related to marital rape?

Referring to the provision of Exception 2 of Section 375 of IPC and Section 63 of BNS (Indian Justice Code), he/she said that in these cases, there cannot be a case of rape in case of forced relationship of husband with adult wife. On this the Chief Justice commented that the argument you are giving is a constitutional question. There are two decisions before us which we have to look at. But the main issue is about the constitutional validity of this legal provision. On this, Advocate Nandi said that the court should definitely repeal this provision because it is unconstitutional.
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If it is repealed…

The Supreme Court said that you are saying that the exception to Section 375 of the IPC violates Article 14 (right to equality), Article 19 (right to expression) and Article 21 i.e. right to life and liberty? Parliament’s opinion is that if a husband has sex with his/her wife above 18 years of age without her consent, then it is not rape. The Supreme Court also mentioned this and expressed surprising doubt that if it rejects this provision then such a case will be categorized as rape or the court can decide it as a separate crime.

Forced unnatural sex with wife is also not a crime

Karuna Nandi, while presenting the arguments on behalf of the petitioner, said that we are challenging Exception 2 of Section 375 of the IPC. This provision is now in Section 63 of BNS. The exception to the IPC states that forced sexual intercourse with a wife above 15 years of age is not rape. On this the Chief Justice said that now the limit in BNS has been increased to 18 years. The only difference between IPC and BNS is that there is an exception for people above 15 years in IPC and 18 years in BNS.

The Chief Justice said that the exception continues for a wife above 18 years of age? But isn’t there an exception for under 18s? Karuna Nandi said that even if unnatural relations are created with the wife then that is also an exception. The Chief Justice said that if any relationship, unnatural or natural, is done by the husband in marriage, then it will not be rape? During this, Justice Pardiwala questioned whether sexual act is not a right.

The intention of Parliament was to keep the husband out of the scope of rape.

The Chief Justice asked the petitioner’s lawyer that if the husband forcibly has sex with the woman, then he/she will be in the exception, this is your case. The Chief Justice said that you are saying that this violates the right to equality and gender freedom. But Parliament wants that if a husband has sex with his/her wife, it will not be rape. If we eliminate this exception, we will have to classify it as a new crime. Nandi said that there are three types of cases. One is the rapist who is not related to the victim, the second is the one who has sex with the husband without her consent and the third category is the one in whom he/she has committed such an act when the husband is in separation. Nandi argued that forced live-in relationship is rape.

It is not a crime if the husband puts some other object also.

The Chief Justice said that according to your argument, if the husband inserts any object then it is not rape, whereas if someone else inserts any object in the private part of the woman then it is rape. Justice Pardiwala said that if the husband makes a demand and the wife refuses and the husband threatens and uses further force, then sections 323, 324 and 325 of IPC etc. are made applicable. But it does not constitute rape.

On this, petitioner’s lawyer Karuna Nandi said, ‘It is the woman’s (my) right to say no, it is my right to say yes.’ On this, Justice Pardiwala said that in case of saying no, divorce should be taken by assuming that the husband is not there? On this, Karuna Nandi said that the woman’s husband should wait for the next day. The hearing will continue in the Supreme Court.