The Supreme Court has decided to await the Central Government's response before fixing a date to hear petitions seeking the criminalization of marital rape. Senior Advocate Indira Jaising has requested a November hearing.
- Supreme Court will wait for the Union Government's formal response.
- Senior Advocate Indira Jaising urged for a November hearing date.
- The case challenges the constitutional validity of the marital rape exception.
- The exception persists even under the new Bharatiya Nyaya Sanhita (BNS).
New Delhi: The Supreme Court on Monday (September 7, 2026) stated that it would await the official position of the Central Government regarding a batch of petitions seeking the criminalization of marital rape before scheduling a definitive hearing date. The matter remains one of the most sensitive and debated legal issues in the country.
During the proceedings, Senior Advocate Indira Jaising, representing the petitioners, appeared before a three-judge bench headed by Chief Justice Surya Kant. Ms. Jaising urged the court to list the batch of petitions for a hearing in November. She noted that while the matter is listed for Wednesday (September 9), the Union Government has yet to file a substantive reply, and the exchange of pleadings between the parties is incomplete.
Why This Matters
BozokMedia analysis shows that this case is a pivotal moment for gender justice in India. The legal core of the dispute lies in the exception clause within the criminal laws. Currently, under the Bharatiya Nyaya Sanhita (BNS)—which replaced the Indian Penal Code (IPC)—sexual acts by a man with his wife (provided she is an adult) are not legally classified as rape.
The fight against marital rape is not just about changing a law; it is about recognizing the fundamental right to bodily autonomy within the institution of marriage.
The petitioners argue that this exception is discriminatory and violates Article 14 of the Constitution, which guarantees equality before the law. They contend that a woman does not lose her right to sexual autonomy simply because she is married.
Historical Background and Legal Conflict
The legal exception has existed for over 160 years, dating back to the enactment of the IPC. The transition from the IPC to the new criminal laws—the Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA)—which came into effect on July 1, 2024, has not altered this specific exception.
| Law Name | Old Provision (IPC) | New Provision (BNS) |
|---|---|---|
| Rape Law | Section 375 (Exception 2) | Section 63 (Exception 2) |
| Status | Repealed | Active |
The conflict was previously highlighted by a split verdict in the Delhi High Court. Justice Rajiv Shakdher had favored striking down the exception, calling it unconstitutional, while Justice C. Hari Shankar maintained that the distinction was legally intelligible. Similar sentiments were echoed by the Karnataka High Court, stating the exemption runs contrary to constitutional equality.
Frequently Asked Questions
1. Is marital rape currently a crime in India?
No, under current law, sexual intercourse by a husband with his adult wife is not legally defined as rape.
2. What is the main argument against this exception?
The primary argument is that it violates the constitutional right to equality and fails to protect women from sexual violence within marriage.
