The Supreme Court on Thursday observed that the petitions regarding the validity of the immunity to a husband from marital rape are an “important issue” that will have to be heard and decided as it agreed to consider listing the matter on an early date. The case has not been effectively heard since January 2023.

“We will hear the matter. Give me time until evening. We will try and see where we can give a slot between the Constitution bench hearings. It is an important issue that will have to be listed,” Chief Justice of India (CJI) Dhananjaya Y Chandrachud told a bunch of lawyers associated with the case.

In January, the array of matters relating to marital rape was listed at least four times before a three-judge bench, which also included justices JB Pardiwala and Manoj Misra. The matters could not be heard because the CJI’s court has been hearing some important constitutional bench matters, including the minority status of the Aligarh Muslim University.

On Thursday, senior counsel Indira Jaising mentioned the matter before the CJI, requesting a fixed date. Advocate Karuna Nundy, who appears for one of the petitioners in the case, on Wednesday made the same request.

The court is seized of a batch of petitions that relate to the exception to Section 375 of the Indian Penal Code (IPC), which exempts forceful sexual intercourse by a man with his wife from the offence of rape.

A set of public interest litigations (PILs) have challenged the validity of the immunity clause in the IPC on the grounds of discrimination against married women who were sexually assaulted by their husbands. The split verdict by the Delhi high court in May 2022 is also pending before the top court for a final word.

Judges of the high court disagreed in their 2022 judgment with one terming the clause protecting husbands from prosecution for non-consensual sex with their wives as “morally repugnant”, while the other said it did not violate any law and could continue to exist.

One petition before the Supreme Court is an appeal by a man whose trial for raping his wife was approved by the Karnataka high court in a March 2022 ruling. While the top court in July 2022 stayed the trial in this case, the then Bharatiya Janata Party-ruled Karnataka filed its affidavit in November last year, supporting the criminal prosecution of the husband.

The Basavaraj Bommai government claimed that the IPC permits the prosecution of a man for raping his wife and therefore, a husband’s trial under Section 375 of the IPC is valid. The new government in Karnataka has so far not clarified whether it abides by the stand of the BJP government.

On January 16, 2023, the top court-appointed advocates Pooja Dhar and Jaikriti S Jadeja as nodal counsel in the matter to prepare a common compilation and collaborate with all the lawyers in the matter to facilitate the proceedings.

On that day, the Union government told the court that making marital rape a criminal offence would have “social ramifications”, which is why it has commenced the process of consultation with states and other stakeholders.

Solicitor-general Tushar Mehta maintained during the proceedings last year that the subject cannot be looked at only through the prism of legalities and that its social impact must also be considered. The government is yet to file its affidavit to bring on record its final stand.

While delivering a judgment in a case related to the medical termination of pregnancy, the Supreme Court said in September that the pregnancy of a married woman due to forcible sex by her husband can be treated as rape under the Medical Termination of Pregnancy Act, in what was the first legal recognition of “marital rape” under an Indian statute.

In 2017, the top court interfered with Exception 2 of Section 375, but only to the extent that it protected husbands from prosecution under the rape charge if the wife was not below 15 years. The Supreme Court read down the exception clause to hold that a wife must not be below 18 for the immunity to operate. At the same time, it clarified that no opinion was being rendered on the issue of marital rape.