The Supreme Court on Thursday, October 17, said it will decide on the constitutional validity of penal provisions of the Indian Penal Code (IPC) and the Indian Judicial Code (BNS) that shield a husband from trial for the offense of rape while he is Forces his wife to have sex. In the earlier hearing in this case, the Central Government had argued that if such cases are brought under the category of crime, it will have a serious impact on marital relations and the institution of marriage will also be affected."text-align: justify;">On this argument of the Central Government, the Supreme Court tried to know the opinion of the petitioners. On behalf of one of the petitioners, senior advocate Karuna Nandi started the arguments and mentioned the provisions of IPC and BNS on marital rape.
Some excerpts from cross-examination in the court
The Chief Justice said while hearing, "This is a constitutional question. We have two decisions (two of the High Court) in front of us and now we have to take a decision. The main issue is of constitutional validity." Nandy said that the court should strike down a provision which is unconstitutional. The top court said, "You are saying that this (penal provision) violates Article 14 (right to equality), Article 19, Article 21 (life and personal liberty). When Parliament enacted the exception clause, its intention was that when a man engages in sexual activity with his wife above 18 years of age, it cannot be considered rape."
‘…the husband came more handsome’
During the hearing Justice J.B. Pardiwala raised a question in the context of a case, "Suppose a husband goes to the extent of attacking his wife or behaving indecently, then he can be prosecuted as per the law. But if there is a matter of forceful sexual intercourse and the wife refuses and files an FIR the next day, what will happen?"
On this Advocate Nandi said, "Any woman’s right to say no is as important as her right to say yes." Justice Pardiwala again asked, "So should the husband accept the wife’s refusal or file for divorce?" Advocate Nandi replied smilingly, "The husband should wait till the next day and come more handsome."
During the hearing, Advocate Karuna Nandi said, "The husband is getting freedom in forcibly having sex with his wife only because the victim is his wife. This is a fight of public versus patriarchy, that is why we have come to court. Our Constitution is changing with the change of people."
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