CJI withdraws marital rape case citing retirement | Latest News India

Chief Justice of India (CJI) Dhananjaya Y Chandrachud on Wednesday decided to let a different bench deal with the controversial issue of criminalization of marital rape after his retirement on November 10, concluding that there would not be enough time to complete the hearings and issue a judgment before your departure. The CJI adjourned the case for four weeks, which means the matter will now be taken up by a new bench after his retirement.

The case generated intense legal and social debate, focusing on the constitutionality of the exemption that protects husbands from prosecution for marital rape under Section 375 of the Indian Penal Code (IPC). The Bharatiya Nyaya Sanhita (BNS) – the new law that replaced the IPC with effect from 1 July – contains a similar immunity provision for husbands.

After a gap of over a year, the CJI, presiding over a bench that included Justices JB Pardiwala and Manoj Misra, opened the final hearing of the case on October 17, signaling that the decision would be delivered by November 10, which it is justice Chandrachud’s last day in office.

During proceedings on Wednesday, CJI Chandrachud sought an estimate from lawyers on both sides on how much additional time they would need to present their arguments. Senior counsel Indira Jaising and Gopal Sankaranarayanan, representing the side opposing the marital rape exception, indicated that they needed at least two more days to finish their presentations. Jaising and her co-counsel argue that the marital rape exception violates the fundamental rights of married women and is an arbitrary distinction within the law.

On the other hand, Attorney General Tushar Mehta, representing the Union government, requested a full day for arguments, highlighting that the issue involves a complex set of considerations that impact not only the legal framework but also the institution of marriage itself . “The ramifications are huge. We are not saying that sexual intercourse can be done without consent, but it is a polycentric problem and this court will have to examine a number of issues,” Mehta said, highlighting the multidimensional implications of the case.

The bailiff’s allegations came amid the central government’s defense of the current law. The government has argued that criminalization should continue to be a legislative prerogative, highlighting the complex socioeconomic factors involved and warning of possible impacts on marriage.

Similarly, senior counsel Rakesh Dwivedi, representing the government of Maharashtra, echoed the SG’s sentiments and suggested that the case be postponed due to the limited time available before CJI Chandrachud’s retirement. He respectfully urged, “This matter may not end in the near future,” indicating that the arguments were too substantial to be concluded during the remaining term of the CJI.

Agreeing with this assessment, CJI Chandrachud expressed that given the upcoming Diwali break, if the arguments were not completed within a week, there would not be enough time for the bench to draft and deliver a judgment. The court will be closed between October 28 and November 2 for Diwali.

Consequently, the court noted in its order that the hearing could not be concluded “in the foreseeable future” and adjourned the case for four weeks to be dealt with by a new court.

On her part, senior advocate Karuna Nundy, representing the main petitioners in the case, urged the CJI to consider concluding the case, stating, “His legacy would come full circle with a judgment in this case.” However, SG Mehta responded by saying, “Your Lordship’s legacy will live on. It certainly doesn’t depend on any subject.”

The postponement means that the question of whether marital rape will be criminalized remains unresolved for now. The outcome will depend on the timing of creation of a new bench and how the new bench deals with legal complexities amid the Centre’s staunch opposition to the law change.

The high court receives a number 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. A body of public interest litigations (PILs) have argued that the exception is discriminatory against married women who are sexually abused by their spouses.

Nundy, who opened the petitioners’ closing arguments on October 17, emphasized that the exception causes harm similar to stranger rape, challenging the logic behind maintaining the exemption for marital rape. The petitioners also drew on international perspectives to support their case, noting that many countries have already criminalized marital rape and treat non-consensual sex within marriage as a human rights violation.

During the October 17 proceedings, the high court questioned the broader implications of criminalizing marital rape on marriage as an institution.

The matter before the high court also includes the Delhi high court’s May 2022 split verdict, which remains pending for the final judgment of the Supreme Court. In that ruling, one judge declared the marital rape exception to be “morally repugnant,” while the other judge ruled that the exception was valid and could continue to exist without violating the law.

Among the pending cases is an appeal by a man whose trial for raping his wife was upheld by the Karnataka High Court in March 2022. The Supreme Court stayed the trial in July 2022. The then BJP-led Karnataka government filed an affidavit sworn in November 2022, supporting the husband’s accusation, stating that the IPC allows the criminal trial of a husband for raping his wife. The new Karnataka government also maintained this position.

On October 3, the Center submitted its statement defending the marital rape exception, claiming that its removal would destroy the institution of marriage, while asking the court to respect the wisdom of the legislature in maintaining the exception, arguing that the Parliament did so after understanding complex socio-economic and cultural aspects. He also warned of the possible misuse of the law if the exception were eliminated.

The statement stated that while a husband has no “fundamental right” to violate his wife’s consent, invoking strict criminal provisions for rape in marital relations would be “excessively harsh” and “disproportionate” as well as having “a socio-legal impact long-range.” implications” on the institution of marriage.

Presented through the Ministry of Home Affairs (MHA), the statement stated that while consent is fundamental, violations of this consent in marriage should be dealt with through less severe penalties, such as provisions relating to sexual assault, use of criminal force, cruelty and domestic violence, rather than the “horrific” provisions applied to cases involving strangers.

The Center acknowledged that both parties to a marriage have rights to privacy and dignity, while adding that invoking IPC Section 375/376 (charges of rape) in matrimonial contexts “would necessarily entail consequences” that do not reflect reality nuanced marital situation. relationships. It further asserted that Parliament adequately balanced these rights by enacting alternative provisions, because applying the harsh label of “rape” to marital contexts could potentially destabilize the institution itself.