Chief Justice’s Big Move In Marital Rape Case — And Lawyer’s Legacy Remark

New Delhi: The bench led by Chief Justice of India DY Chandrachud will no longer hear petitions challenging the immunity granted to husbands in marital rape cases. The decision was taken because the Chief Justice is due to retire on November 10 and the bench, also comprising Justice JB Pardiwala and Justice Manoj Misra, won’t be able to complete hearing the submissions and give a verdict before that.

The Chief Justice-led bench adjourned the matter for four weeks. A new bench will hear the matter after that.

During the hearing today, lawyers representing several parties said they would take time to make their submissions in the matter. Senior Advocate Sankarnarayanan said he would take at least a day to complete his submissions. Solicitor General Tushar Mehta said he would take a day too. So did Senior Advocate Rakesh Dwivedi. Maninder Singh, Arvind Datar and Indira Jaising are the other lawyers appearing in the matter.

“Then this can be deferred,” the Chief Justice said. “We have heard submissions by Ms Nundy. Mr Gopal Sankarnarayan says he will require one day. This will be followed by submissions by Senior Advocate Jaising and other counsels will take a day each. The above estimates show that arguments will be heard for intervenors, rape accused and respondents. Hence it will not be possible to complete the hearing in the foreseeable future,” he said, ordering the matter to be relisted.

Senior Advocate Karuna Nundy, appearing for one of the petitioners said, “Your (Chief Justice) legacy would warrant this case to be heard for the millions of women.” To this, the Solicitor General responded, “Your lordship’s legacy will be remembered and this statement need not be made.” The Chief Justice noted that all parties have to make arguments and directed that the matter be listed after four weeks. The hearing in the matter started on October 17.

The newly-implemented Bharatiya Nyaya Sanhita grants immunity from prosecution to a husband for rape if his wife is not a minor. Under the new law, exception 2 to Section 63 (rape) says “sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape”.

The Centre has told the court that there is no need to criminalise marital rape and that it is not within the court’s purview to take this decision. The government has said that the marital rape issue is more a social issue than a legal one as it will have a direct impact on society.

The Parliament, the Centre has argued, has provided several measures to protect the consent of a married woman within marriage.

The sexual aspect, it said, is one of the many aspects of the relationship between a husband and wife on which the foundation of their marriage rests. If the legislature is of the view that the protection of the institution of marriage is essential, it would not be appropriate for the court to strike down the exception, the Centre has said.