The Supreme Court said on Wednesday that it would consider listing of the pleas challenging the validity of Exception 2 of Section 375 of Indian Penal Code (IPC) and that of Bharatiya Nyaya Sanhita that protects a husband from criminal prosecution for having non-consensual sex with his wife.

Besides, challenge to the Exception 2 of Section 375 of the IPC and that of Bharatiya Nyaya Sanhita that replaced the IPC and retains provision granting immunity to husband from prosecution for non-consensual sex with his wife, the issue has landed in the Supreme Court in the wake of May 11, 2023, split verdict by a division bench of Delhi High Court on the criminalising marital rape.

Heading a bench comprising Justice J B Pardiwala and Justice Manoj Misra, the Chief Justice D Y Chandrachud said they were seized of a part-heard matter and would assess the workload next two days after conducting the hearings.

Chief Justice Chandrachud said this after senior advocate Indira Jaising mentioned the matter for urgent hearing.

It may be recalled here that on August 5, 2024, the CJI had said as the bench would be busy this week in dealing with a batch of matters on taxation law so next week the marital rape matter would be taken up for hearing.

In the hearing held on March 22, 2023, Indira Jaisinh and Karuna Nandy had told the court that the issues that need to be adjudicated have been agreed upon between the parties, and a common compilation is ready.

The Supreme court, on January 16, 2023, had asked the Centre to respond to the petitions challenging the constitutional validity of the Exception 2 to Section 375 of Indian Penal Code on the touchstone of Articles 14, 19(1)(a) and 21 of the Constitution.

Solicitor General Tushar Mehta, on January 16 , 2023, had told the court that the issue has legal as well as “social implications” and the government would like to file its response to the petitions.

“The Union of India shall file a counter affidavit by February 15, 2023. The batch of petitions will be heard on March 21,” the court had ordered.

One of the pleas has been filed by Khushboo Saifi, who was one of the petitioners before the Delhi High Court. Another plea has been filed by a man against the Karnataka High Court verdict which paved way for his prosecution for allegedly raping his wife.

The Karnataka High Court had on March 23, 2022 said exempting a husband from the allegation of rape and unnatural sex with his wife runs against Article 14 (equality before law) of the Constitution.

The others are PILs including one by AIDWA filed against the IPC provision and have challenged the constitutionality of the marital rape exception under Section 375 IPC (rape) on the ground that it discriminates against married women who are sexually assaulted by their husbands.

Under the exception given in Section 375 of the IPC, sexual intercourse or sexual acts by a man with his wife, the wife not being minor, is not a rape.