Marital Rape Exception Before Supreme Court Again: “What Is The Union’s Stand?” CJI-Led Bench To Hear Case On September 9

Will the Supreme Court remove the legal exception that prevents a husband from being prosecuted for rape by his adult wife in specified circumstances? The Court has first asked for the Union Government’s stand before fixing the detailed hearing.

NEW DELHI: The Supreme Court is set to hear a batch of important petitions concerning the marital rape exception on September 9, 2026. The petitions raise a major constitutional and criminal-law question concerning whether a husband should continue to receive the statutory exception from the offence of rape in relation to his adult wife.

The matter came up before a Bench headed by Chief Justice of India Surya Kant, along with Justice Joymalya Bagchi and Justice V. Mohana.

During mentioning on September 7, Senior Advocate Indira Jaising requested the Court to fix the matter for hearing in November. She told the Bench, "I am asking for a fixed date of hearing in November".

The Court was also informed that the pleadings between the parties had not yet been fully exchanged.

Senior Advocates Karuna Nundy and Siddharth Dave, appearing in different connected matters, also made submissions before the Court.

The Chief Justice indicated that the Court would first consider the response of the Union Government when the matter comes up on Wednesday.

The Court observed,

"The matter is listed on Wednesday..we will see what the Union's response is..After consideration on Wednesday with all of you we will fix a date for hearing.."

The litigation primarily challenges Exception 2 to Section 375 of the Indian Penal Code, 1860, which historically excluded specified sexual intercourse or sexual acts by a husband with his wife from the definition of rape.

The legal position, however, requires an important clarification. The original IPC exception used the age of 15 years. In Independent Thought v. Union of India (2017), the Supreme Court read down the exception in relation to minor wives, effectively removing its protection where the wife is below 18 years.

The IPC has now been replaced by the Bharatiya Nyaya Sanhita, 2023. However, these constitutional proceedings arose from challenges to the earlier IPC provision and connected cases, making the Supreme Court’s eventual ruling significant for the larger legal debate over consent, marriage and criminal liability.

The issue has remained pending before the Supreme Court for several years. In 2024, then Chief Justice of India D.Y. Chandrachud expressed his inability to complete the hearing within the available time and directed that the matters be placed before a fresh Bench.

During the earlier proceedings, the Supreme Court had raised a larger question about the possible consequences of changing the existing legal framework:

"Will striking down the exception and criminalizing acts of non-consensual intercourse within marriage would have the possibility of destabilizing the institution of marriage?"

The Union Government has previously opposed the plea seeking criminalisation of marital rape through judicial removal of the exception. Its position has been that the issue requires a comprehensive and holistic approach rather than being examined only as a strictly legal question.

The Centre has also argued that striking down the exception on constitutional grounds could have far-reaching consequences for marriage and conjugal relationships.

According to the Union Government, marriage creates a legally distinct relationship involving reciprocal rights and obligations. Explaining its position, the Centre stated:

"The concept of marriage, across personal law and jurisdictions, once solemnised as per the prevailing societal rituals or legal requirements, creates reciprocal legal and social obligations on part of both individuals. It is submitted that at the same time, marriage creates social and legal rights on the part of both individuals and others in the family, in various domains of civil laws and even criminal law,"

The pending batch also has its roots in the split verdict delivered by the Delhi High Court on the constitutional validity of the marital rape exception.

The Supreme Court had issued notice in the challenge arising from that split verdict. One of the appeals was filed by Khushboo Saifi, who had earlier been a petitioner before the Delhi High Court. Connected proceedings were also brought by Hridaya Nest of Family Harmony and the All India Democratic Women's Association.

The Delhi High Court had delivered a divided opinion on the issue. Justice Rajiv Shakdher held the marital rape exception unconstitutional and favoured striking it down.

Justice C. Hari Shankar reached the opposite conclusion and upheld the provision, including on the basis of “intelligible differentia” between marital and non-marital relationships for the purpose of the provision.

Because of this difference of opinion, the constitutional controversy ultimately reached the Supreme Court.

RIT Foundation, which had initiated the principal constitutional challenge before the Delhi High Court in 2015, is also part of the litigation. The All India Democratic Women's Association has supported the challenge to the exception.

Another significant connected proceeding is that of Hrishikesh Sahoo.

The case arose from allegations made by Sahoo's wife involving several offences under the IPC. The proceedings also contained separate allegations concerning their daughter under the Protection of Children from Sexual Offences Act, 2012.

Sahoo approached the Karnataka High Court and relied upon the marital rape exception while seeking relief against the criminal proceedings.

On March 23, 2022, Justice M. Nagaprasanna of the Karnataka High Court declined to interfere with the rape charge against the husband in the peculiar facts of that case. The decision subsequently reached the Supreme Court through Special Leave Petitions.

While dealing with the case, the Karnataka High Court made the significant observation that “no exception under law can be so absolute that it becomes a license for the commission of a crime against society”.

The Supreme Court records show that Sahoo's challenge is registered as SLP (Crl.) Nos. 4063-4064 of 2022.

The larger proceedings therefore go far beyond one matrimonial dispute. The Supreme Court is dealing with competing questions involving bodily autonomy, consent, equality, the legal character of marriage, criminal-law safeguards and the consequences of extending the offence of rape to sexual acts between spouses.

For husbands, the eventual framework will also have serious criminal-law consequences because a rape prosecution carries exceptionally grave penal, reputational and procedural consequences. This makes the exact definition of the offence, evidentiary safeguards, due process and protection against misuse important parts of the wider debate, alongside the protection of genuine victims of sexual violence.

The Supreme Court has not yet finally decided the constitutional validity of the marital rape exception. The September 9 proceedings are therefore significant because the Bench has indicated that it wants to examine the Union Government's response before deciding how and when the substantive hearing should proceed.

LAWS AND SECTIONS EXPLAINED

CASE DETAILS

PRINCIPAL DELHI HIGH COURT CASE

Case Title: RIT Foundation & Ors. v. Union of India & Ors.

Case Nos.: W.P.(C) 284/2015 and connected matters

Decision Date: May 11, 2022

Bench: Justice Rajiv Shakdher and Justice C. Hari Shankar

Neutral Citation: 2022:DHC:1825-DB

KEY TAKEAWAYS

• Supreme Court will hear the marital rape exception petitions on September 9, 2026.
• The Court has specifically sought the Union Government’s stand before fixing the detailed hearing.
• The issue can expose husbands to one of the gravest criminal allegations within marriage.
• Consent must be protected, but criminal law also needs strict safeguards against false or retaliatory complaints.
• Any change must balance women’s protection with due process, evidence standards and protection of innocent husbands.