The Supreme Court is scheduled to hear on September 9, 2026, a batch of petitions challenging the legal exception that protects husbands from prosecution for rape against their wives.
A Bench headed by Chief Justice of India Surya Kant with Justice Joymala Bagchi and Justice V. Mohana indicated on Monday that it would consider the matter on Wednesday and, after hearing the parties and considering the Union government’s stand, decide a date for the final hearing.
Senior Advocate Indira Jaising mentioned the matter before the Bench and sought a fixed date for hearing in November. She also pointed out that pleadings in the matter had not yet been exchanged. Senior Advocates Karuna Nundy and Siddharth Dave, appearing in separate petitions, also made submissions.
The petitions challenge Exception 2 to Section 375 of the Indian Penal Code (IPC), which excluded non-consensual sexual intercourse by a husband with his wife from the definition of rape, subject to the statutory conditions.
Following a split verdict by the Delhi High Court in May 2022, the petition challenging the marital rape exception is now before the Supreme Court. Setting up the next steps, the CJI remarked, it was noted by the Chief Justice of India that the Union’s response would be reviewed, and following discussions with all parties on Wednesday, a hearing date would be fixed.
A Division Bench comprising Justices Rajiv Shakdher and C Hari Shankar delivered differing views on the constitutional validity of the exception. Justice Shakdher held the provision unconstitutional and favoured striking it down, while Justice Hari Shankar upheld it, holding that the distinction between sexual acts within and outside marriage was based on an “intelligible differentia”.
The Delhi High Court granted certificates for appeals to the Supreme Court, following which petitioner Khushboo Saifi approached the top court. The Supreme Court issued notice in September 2023 on her appeal and similarly placed petitions filed by Hridaya Nest of Family Harmony and the All India Democratic Women’s Association (AIDWA).
The RIT Foundation, which initiated the principal constitutional challenge before the Delhi High Court in 2015, is also a petitioner before the Supreme Court.
Another significant challenge was brought by Hrishikesh Sahoo, whose wife had lodged criminal proceedings against him in 2017 alleging, among other offences, rape and cruelty. He was also accused of sexually assaulting their daughter and faced charges under the Protection of Children from Sexual Offences (POCSO) Act.
Sahoo invoked the marital rape exception before the Karnataka High Court, seeking quashing of the rape charge. Justice M Nagaprasanna rejected his plea in February 2022, holding that the exception could not operate as an absolute protection for a husband accused of sexual violence.
The High Court relied, among other considerations, on the Justice JS Verma Committee’s 2013 recommendation for removing the marital rape exception and observed that no legal exception could become a licence to commit a crime.
Sahoo subsequently approached the Supreme Court in May 2022.
The Supreme Court had also earlier raised questions about whether removing the exception and criminalising non-consensual sexual intercourse within marriage could have wider consequences for the institution of marriage.
The Union government has opposed the challenge, arguing that the issue requires a comprehensive approach extending beyond purely legal considerations. In its affidavit, the Centre has submitted that striking down the exception could have far-reaching consequences for marriage and conjugal relationships.
The government has argued that marriage creates reciprocal legal and social obligations between spouses and constitutes an intelligible basis for the legislative distinction contained in the existing law.
The Supreme Court’s consideration of the Union’s response on September 9 is expected to determine the next course of proceedings in the long-pending constitutional challenge.
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