The Supreme Court of India is set to re-examine the legal and constitutional validity of marital rape, with hearings scheduled to begin in three weeks. The court will primarily assess whether a man can be prosecuted for marital rape despite existing legal exceptions and whether the exception itself is constitutionally valid. The Centre has reiterated that criminalising marital rape is a legislative matter, not within the judiciary's domain.

The current legal framework in India allows for marital rape to be exempt from prosecution under Exception 2 to Section 63 of the Bhartiya Nyaya Samhita, which applies if the wife is above 18 years old. This exception, inherited from British colonial law, has been a point of contention for women's rights groups and international bodies, including the United Nations, which have repeatedly called for its removal. Over 130 countries have criminalised marital rape, with the UK prosecuting such cases under its strict rape laws.

Justice Joymalya Bagchi, part of the bench hearing the matter, stated that the court must consider the constitutional validity of the exception. 'The question before us is whether despite such status as a victim, the State defines it as rape or not,' he said. The judges also highlighted the importance of Mens Rea (criminal intent) and culpability in determining legal accountability. The court emphasized the need to interpret the constitution in a way that does not surprise citizens with sudden legal changes.

Senior advocate SG Mehta, representing the Centre, argued that the legislature and executive, not the judiciary, should decide on criminalising marital rape. 'It is the job of legislature and the executive and not the judiciary,' he said. The government's affidavit noted that India cannot blindly follow Western legal models and must consider unique social and cultural factors. It also warned that criminalising marital rape could have significant social ramifications, including the potential erosion of the institution of marriage.

The issue has been under legal scrutiny for years, with the first petitions to criminalise marital rape filed in the Delhi High Court in 2015. In 2022, the Delhi High Court delivered a split verdict on the matter, which was then referred to the Supreme Court. The current hearing marks a significant step in the legal discourse on marital rape in India, with the court balancing constitutional principles against legislative authority and societal concerns.

The outcome of the Supreme Court's examination could have far-reaching implications for women's rights and legal protections in India. However, the court has not yet provided a definitive stance on the constitutional validity of the exception, leaving the issue open for further legal and societal debate.