Karuna Nundy
The recent ruling by the Chhattisgarh High Court, which stated that unnatural sex between a husband and wife does not constitute an offence under Indian law, has ignited widespread debate. Senior Supreme Court Advocate Karuna Nundy criticised the verdict, arguing that the legal framework continues to protect the Marital Rape Exception.
Nundy remarked, “Judge’s hands were tied by law. The Marital Rape Exception in the new BNS allows husbands to insert objects and body parts in a wife’s orifices without her consent, and it’s not considered rape. The law could have been changed in the new BNS, but it wasn’t. Our civil appeal to remove this Marital Rape Exception is in the Supreme Court.”
Controversial High Court Ruling
The Chhattisgarh High Court’s judgement stemmed from a case in which a man was accused of unnatural sex with his wife, leading to her hospitalisation and subsequent death due to peritonitis and rectal perforation. Initially convicted under Sections 376 and 377 of the Indian Penal Code (IPC), the husband was later acquitted by the High Court, which ruled that if the wife is over 15 years of age, any sexual act by the husband cannot be deemed rape.
The court declared that the lack of consent for unnatural acts loses significance within marriage, effectively eliminating punishment for such offences. This ruling follows the broader legal stance in India, where marital rape is not recognised as a crime.
Legal Battle Over Marital Rape Exception
The debate over criminalising marital rape has been ongoing in the Supreme Court, with multiple petitions seeking to challenge the existing legal framework. The matter was deferred last year when Chief Justice D.Y. Chandrachud postponed the hearing, citing time constraints before his retirement. The case was set to be reassigned to another bench.
During the hearings, the Centre maintained that protecting the institution of marriage is crucial and that criminalising marital rape could lead to serious disturbances in conjugal relationships. However, advocates like Nundy and other petitioners argue that consent should remain central to all sexual relationships, regardless of marital status.
Split Judgements Across Courts
The legal discourse surrounding marital rape has seen varied interpretations across Indian courts. The Delhi High Court delivered a split verdict on the matter in May 2022, with Justice Rajiv Shakdher calling the marital rape exception “unconstitutional,” while Justice C Hari Shankar argued it was based on “intelligible differentia.”
Similarly, the Karnataka High Court ruled in 2023 that exempting husbands from rape allegations contradicted Article 14 of the Constitution, which guarantees equality before the law. This decision allowed prosecution for marital rape, marking a stark contrast to the Chhattisgarh High Court’s ruling.
