Supreme Court examines marital rape provisions as questions arise over 'Judicial bounds'
"We would definitely protect rape victims but is it within the domain to prosecute a person where there is direct exclusion under Section 375?" the bench remarked
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New Delhi, Sep 12: Supreme Court of India, in a recent hearing, has agreed to test whether the legal rule protecting a husband from being charged with the rape of his wife violates the Indian Constitution. The hearing has raised pivotal concerns surrounding institutional boundaries and the separation of powers.
It deals with constitutional validity of marital rape exception under Exception 2 to Section 375 of the Indian Penal Code (IPC) and its corresponding provision, Section 63 of the newly enacted Bharatiya Nyaya Sanhita (BNS). The petitions seek to strike down or read down these provisions to criminalize non-consensual acts within a marriage. Importantly, during the case, the judges correctly pointed out the limits of their power. They questioned if courts should allow criminal charges for actions that Parliament chose not to make illegal.
Observing that it must speak its "constitutional language," the Court emphasized that elected representatives reflect the public mandate. "We would definitely protect the victims but is it within the domain to prosecute a person where there is direct exclusion under Section 375?" the bench remarked.
“Marriage cannot extinguish individual autonomy”, Supreme Court begins final hearing on marital r@pe exception
— Amish Aggarwala (@AmishAggarwala) September 11, 2026
The Supreme Court has commenced final hearings on the constitutional challenge to the marital r@pe exception, with the Bench observing that marriage cannot result in… pic.twitter.com/UT1vt8hShN
Legal scholars and traditional rights advocates have consistently cautioned against judicial overreach into family law. Marriage in India is universally regarded as a sacred institution, underpinned by distinct personal laws and delicate socio-cultural balances. Critics of rewriting criminal provisions through the judiciary argue that creating new criminal offenses remains the sole prerogative of Parliament. Introducing blanket criminalization through judicial mandates risks undermining the sanctity of the marital union and exposes households to potential misuse of draconian penal measures, which is a concern frequently observed with existing matrimonial laws.
Solicitor General Tushar Mehta told the court that the government has already filed its reply. The court agreed to hear it alongside a 2022 Karnataka High Court case. It also made clear that it will only look at the big constitutional questions and not judge individual cases.