Marital rape case: CJI Chandrachud bows out of hearing, says it may not conclude in foreseeable future

CJI Chandrachud is retiring on November 11; lawyers on both sides said they need more days to argue

Chief Justice of India D.Y. Chandrachud, who is retiring on November 11, bowed out of hearing the marital rape exception case on Wednesday (October 23, 2024) after remarking that lawyers’ arguments will not conclude in the “foreseeable future”.

What was expected to be just another day of hearing of the case started with several senior lawyers on both sides seeking a day each to make their submissions in court.

Also read: Explained | Marital rape in India: The history of the legal exception 

Senior advocates Gopal Sankaranarayanan, Rakesh Dwivedi, Indira Jaising and Solicitor General Tushar Mehta, for the Centre, informed the Bench led by the Chief Justice that they would at least take a day each to raise detailed arguments. Mr. Mehta said the case was “polycentric” and had a social impact, requiring extensive oral submissions by the government.

Chief Justice Chandrachud also found that there were still more lawyers seeking time to argue in the case. The Chief Justice said the Bench could not stop anyone from putting forward their submissions.

However, the CJI said he had expected the case to be reserved for judgment ahead of the Deepavali holidays.

October 25 is the final working day before the court closed for Deepavali vacations. The court reopens on November 4. The Chief Justice’s last working day is November 8.

“It would not be possible to conclude within the foreseeable future,” the CJI remarked orally.

The three-judge Bench, also comprising Justices J.B. Pardiwala and Manoj Misra, ordered the case to be listed after four weeks.

The mantle of constituting a fresh Bench would fall upon Chief Justice Chandrachud’s successor and current Chief Justice of India-designate, Justice Sanjiv Khanna.

The marital rape exception case thus ended on an inconclusive note on October 23.

The petitioners have argued that protection given to non-consensual sexual acts by a man with his own wife violated women’s right to bodily integrity, autonomy and dignity.

However, a recent affidavit filed by the Centre said punishment of non-consensual sexual acts in wedlock and categorising it as rape would impact conjugal relationship and lead to “serious disturbances” in the institution of marriage.

The petitions seek to strike down Exception 2 of Section 375 of Indian Penal Code. The provision excludes non-consensual sexual intercourse by a husband with his wife, if the latter is over fifteen years of age, from the definition of ‘rape’.

The petitions were triggered by decisions from Karnataka and Delhi High Courts, requiring an authoritative pronouncement from the apex court.

The Karnataka High Court had held that a husband was liable to be charged for rape if he had forcible sex with his wife. The Karnataka government had supported the High Court judgment in an affidavit in the apex court subsequently.

Also read | Marital rape case hearing updates — October 23, 2024

A Division Bench of the Delhi High Court had however in May last year delivered a split verdict in a separate case on the identical issue. Justice Rajiv Shakdher, who headed the two-judge Bench, had struck down as unconstitutional the Exception two to Section 375 of the Indian Penal Code (IPC).

However, Justice C. Hari Shankar, the associate judge on the High Court Bench, had rejected the plea to criminalise marital rape, noting that any change in the law should be carried out by the legislature since the issue required consideration of various aspects, including social, cultural and legal.

Published - October 23, 2024 02:03 pm IST