Supreme Court asks if husband can be prosecuted for marital rape when law says it is not an offence

NEW DELHI: Citing Article 20(1) of the Constitution which shields persons from prosecution for an act which is not an offence under existing penal laws, the Supreme Court on Wednesday asked whether a husband can be prosecuted for marital rape when the law categorically states that it is not an offence, even as it agreed with the Centre that the matter should be left for Parliament’s consideration. Article 20(1) provides that “no person shall be convicted of any offence except for violation of law in force at that time…” Section 375(2) of IPC said “sexual intercourse or sexual acts by a man with his wife, the wife not being under 15 years, is not rape” (wife’s age was raised to 18 by SC in 2017), with the provision replicated in Sect 63(2) of BNS.

Centre should go back to drawing board if law has a problem, says SC

With a bunch of petitions challenging the constitutional validity of this exception to rape, a bench of Chief Justice of India Surya Kant, and Justices Joymalya Bagchi and V Mohana said the matter posed foundational questions, especially citing the case in which a husband has challenged a Karnataka high court decision to permit his prosecution for marital rape. The hearing saw Solicitor General Tushar Mehta arguing that the issue, given its complexity, be left for the Parliament to consider. It will be absurd for courts to take upon themselves the task of determining the nature of sex — natural or unnatural — when it is best left to people, their representatives and legislature, SG Tushar Mehta said.

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The bench agreed. “It should always come from Parliament. If the govt feels there is a problem with the law, then it should go back to the drawing board and recast the law with approval of Parliament,” it said. During the last hearing, SC had wondered whether the court can rewrite penal laws to create a new offence. Senior advocate Karuna Nundy said that no new offence needs to be created as the offence of rape is already defined and the only question is whether it is constitutionally justified to grant immunity from it to a class of persons (husbands).

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