The Centre has told the Supreme Court that deciding whether marital rape should be treated as a criminal offence falls within Parliament’s legislative domain and not the judiciary’s jurisdiction. The submission came on Wednesday during proceedings on a batch of petitions seeking criminalisation of sexual intercourse without a wife’s consent.
Solicitor General Tushar Mehta, representing the Centre, reiterated the government’s position before a bench headed by Chief Justice of India Surya Kant, along with Justices Joymalya Bagchi and V. Mohan. The court said final hearings on the petitions would begin after three weeks and would be conducted every Wednesday and Thursday.
The legal challenge focuses on the marital rape exception under Section 63 of the Bharatiya Nyaya Sanhita (BNS), corresponding to the exception under the former Indian Penal Code. The provision states that sexual intercourse by a man with his wife, provided she is not below 18 years of age, does not constitute rape.
Justice Bagchi observed that there was no doubt that a woman subjected to sexual intercourse against her will within marriage was a victim of abuse. The key constitutional question, he said, was whether the State should legally classify such conduct as rape.
The court indicated that it would examine whether cases could proceed despite the existing exception and whether the exception itself was constitutionally valid.
Senior advocate Karuna Nundy, appearing for one group of petitioners, argued that marriage should not provide immunity from criminal liability when a woman is seriously harmed through non-consensual sexual intercourse.
The Centre had previously opposed treating marital rape specifically as “rape”, while maintaining that non-consensual sexual relations within marriage should be regarded as illegal and wrongful.
