The Supreme Court on Wednesday made it clear that it will decide the legality of the immunity granted to husbands from prosecution for marital rape solely on legal principles, even if the Union government does not take a stand on the issue.
“It’s a matter of law. They will have to argue on the point of law if they have chosen not to file an affidavit,” said a bench led by Chief Justice of India (CJI) Dhananjaya Y Chandrachud.
The court’s statement came after senior counsel Indira Jaising, representing one of the petitioners, urged the bench to ensure an early hearing of the matter. During the proceedings, another lawyer pointed out that despite several opportunities, the Centre had yet to file its affidavit, clarifying its position on the issue.
Responding to this, the bench, which also included justices JB Pardiwala and Manoj Misra, stated that the case, which challenges a legal provision of the penal code, would proceed as a question of law.
The case figured in the court’s list of business on Wednesday, but it could not be heard due to the day-long hearing in another matter relating to customs appeals.
The Supreme Court is currently dealing with a batch of petitions challenging the constitutionality of Exception 2 under Section 375 of the IPC, which exempts a husband from being prosecuted for raping his wife. These public interest litigations (PILs) argue that the exception is discriminatory against married women who are sexually assaulted by their spouses.
The issue also includes the Delhi High Court’s split verdict from May 2022, which remains pending for the Supreme Court’s final judgment.