Supreme Court on Thursday sought to know if criminalisation of marital rape can destabilise the “institution of marriage“.
CJI DY Chandrachud-headed bench also asked petitioners whether striking down the legal exception that prevents wives from prosecuting their husbands on charge of rape would lead to constitution of a separate offence.
In response, senior advocate Karuna Nundy, appearing for some petitioners, said striking down the exception will not create a separate offence. “No new offence will be created. Marriage is not institutional but is personal…the (existing) law carves out status-based immunity (for husbands),” she said.
Nundy said it is “not men versus women case. But it’s a people versus patriarchy case”. She added that to subjugate a married woman to subordination in marriage and denuding her of her agency amounts to treating her as a passive subject and depriving her of equal rights in a marriage.
“There should be equality between spouses,” Nundy said, stating that the wife should not be subjugated to subordination. She began arguments in the case on Thursday and urged SC to strike down as “unconstitutional” the exception that prevents a wife from prosecuting her husband for rape.
Speaking for the bench, justice JB Pardiwala asked Nundy: “So you are saying that when a wife refuses sex, the only option for the husband is to ask for divorce?” In response, Nundy smilingly said: “Wait for the next day. Or be more charming. Or talk to her (wife).” She added that with people transforming in society, the Constitution must also transform. Another counsel for petitioners urged SC to consider referring the matter to a Constitution bench.
Earlier this month, the Centre had submitted an affidavit, opposing petitions seeking criminalisation of marital rape. In its affidavit, the Union home ministry had submitted that if sexual acts by a man with his wife is made punishable as “rape”, it may severely impact the conjugal relationship and lead to serious disturbances in the institution of marriage.
The Centre has taken the stance that it is not within the jurisdiction of the Supreme Court to criminalise marital rape. The ministry contended that the issue is more of a social than a legal one, which has a direct bearing on society in general. The affidavit states that the issue “cannot be decided without proper consultation with all the stakeholders or taking the views of all the states into consideration”. The ministry submitted that “a woman’s consent is not obliterated by marriage, and its violation should result in penal consequences. However, the consequences of such violations within marriage differ from those outside it”.
