The Supreme Court, led by the Chief Justice of India (CJI), raised significant questions as it examined the appeal against the Delhi High Court’s ruling on marital rape. The CJI highlighted the importance of the case, stating, “There are two judgments before us, and we must make a decision,” reflecting the complexity of the legal issues involved.
Senior Advocate Indira Jaising, arguing against the marital rape exception, emphasized that the key issue lies in its constitutional validity. She suggested that even if the exception is upheld, legal action could still be pursued. However, the CJI clarified that the primary focus of the court should be on determining the constitutionality of the exception before delving into further legal interpretations.
The discussion became more intense as Advocate Karuna Nundy, representing the appellants, revisited the origins of the case, which began with a petition from the All India Democratic Women’s Association. Nundy pointed out the inconsistency between Section 375, Exception 2 of the Indian Penal Code (IPC), which exempts marital rape, and similar provisions in the Bharatiya Nyaya Sanhita (BNS).
The CJI drew attention to the legal inconsistency related to the age of the wife in marital relationships, asking, “When the wife is under 18, it is considered rape, but when she is over 18, it is not. Is this the difference between the BNS and the IPC?” Nundy confirmed this and cited previous court rulings that deemed certain age-related provisions unconstitutional.
The discussion also touched on sensitive issues, such as non-consensual anal intercourse in marriage, which, according to Nundy, is not covered by the marital rape exception. This exposed further legal gaps in the exception.
Justice Pardiwala raised additional concerns about the undefined nature of “sexual acts” within the legal framework, to which the CJI responded by outlining the wide-ranging and potentially problematic implications of the current marital rape exceptions.
As the session drew close to its lunch break, the CJI requested Nundy to clearly outline the grounds for challenging the exception, signaling that the critical legal debate would continue in the afternoon.
