India Supreme Court: Marital Rape Section 375 Hearing Set, Union Stand Sought

• The India Supreme Court will hear petitions challenging Exception 2 of Section 63 of the Bharatiya Nyaya Sanhita (BNS), which currently exempts husbands from rape charges against their wives, on September 9, 2026.
• A bench led by CJI Surya Kant has requested the Union government's stand on the criminalization of marital rape.
• The Central government opposes criminalization, arguing it would destabilize marriage and that a holistic approach is needed.
• The case follows a split verdict from the Delhi High Court, where one judge found the exception unconstitutional and another upheld it. Justice Rajiv Shakdher, who ruled the provision unconstitutional, has since been elevated as the Chief Justice of the Himachal Pradesh High Court.
• The Supreme Court's decision could significantly redefine marital rights, criminal liability, and impact various legal and social domains in India.

The Supreme Court's impending decision on the marital rape challenge carries profound implications for Indian society and its legal framework.

India's Supreme Court is set to address a pivotal legal challenge concerning the criminalization of marital rape, with a hearing scheduled for September 9, 2026. A batch of petitions before the apex court specifically targets Exception 2 of Section 63 of the Bharatiya Nyaya Sanhita (BNS), which has replaced the Indian Penal Code (IPC), and currently stipulates that sexual intercourse or sexual acts by a man with his own wife, provided she is not under eighteen years of age, does not constitute rape. This legal provision effectively shields husbands from prosecution for non-consensual sexual acts within marriage, a stance that petitioners argue is unconstitutional.

The proceedings are being overseen by a bench led by Chief Justice of India Surya Kant, who has formally requested the Union government to articulate its position on this contentious issue. During a recent court session, Senior Advocate Indira Jaising brought the matter to the court's attention, requesting a fixed hearing date in November. The court was also informed that the exchange of pleadings among the parties involved had not yet been completed. Senior Advocates Karuna Nundy and Siddharth Dave were also present, representing various petitioners in the ongoing legal battle. The Chief Justice indicated that the court would first consider the Union's response before setting a definitive date for the full hearing.

The current challenge to Exception 2 of Section 63 BNS is not a new development. In 2024, former Chief Justice of India D.Y. Chandrachud had acknowledged his inability to conclude the hearings on these petitions in a timely manner, subsequently listing them before a new bench. Earlier in the proceedings, the court had posed a significant question regarding the potential societal impact of such a change, asking whether striking down the exception and criminalizing non-consensual intercourse within marriage could destabilize the institution of marriage itself.

This Supreme Court intervention follows a split verdict delivered by the Delhi High Court on the same issue. In that instance, Justice Rajiv Shakdher, who has since been elevated as the Chief Justice of the Himachal Pradesh High Court, ruled that the provision was unconstitutional and ordered the exception to be struck down. Conversely, Justice C. Hari Shankar upheld the constitutionality of the provision, asserting that it was based on an “intelligible differentia.” The Supreme Court issued notice in September 2023 on an appeal filed against this split verdict by Khushboo Saifi, who was a petitioner in the High Court. Similar appeals from organizations like Hridaya Nest of Family Harmony and the All India Democratic Women’s Association, along with the NGO RIT Foundation, have also been brought before the Supreme Court.

The Central government has voiced its strong opposition to the criminalization of marital rape before the Supreme Court. It argues that a comprehensive and holistic approach, rather than a strictly legal one, is necessary to address the matter. In an affidavit submitted to the court, the government highlighted that removing the exception for husbands from the offense of rape, particularly on grounds of constitutional validity, would have far-reaching implications for the institution of marriage and could severely impact conjugal relationships.

The government's submission further contends that the concept of marriage, across various personal laws and jurisdictions, once solemnized, establishes reciprocal legal and social obligations for both individuals. It maintains that marriage creates an “intelligible differentia” that possesses a rational nexus with the objectives it seeks to achieve. The Centre emphasized that marriage simultaneously generates social and legal rights for both individuals and other family members across various civil and even criminal law domains, underscoring its complex societal role.

The Supreme Court's impending decision on the marital rape challenge carries profound implications for Indian society and its legal framework. The outcome will significantly redefine marital rights and could establish new parameters for criminal liability for husbands, extending beyond the immediate scope of family law. This redefinition could influence various aspects of Indian criminal law, particularly concerning consent within marital relationships.

Furthermore, the ruling is expected to have ripple effects on broader societal norms and potentially impact workplace policies related to consent and sexual harassment. The court's deliberations and final judgment will be closely watched by legal professionals, compliance officers, and human rights advocates, as it stands to reshape fundamental understandings of autonomy and protection within marriage in India.

Lawyers and compliance officers in India should closely monitor the Supreme Court's hearing on Exception 2 of Section 375 IPC, as its outcome will significantly redefine marital rights and criminal liability for husbands, impacting family law, criminal law, and potentially workplace policies related to consent and sexual harassment.

Source: Original reporting via NDTV