The Supreme Court examined a central legal question in the ongoing marital rape debate: can a husband face prosecution for rape when the existing criminal law specifically excludes non-consensual sexual intercourse with his wife from the offence of rape? A bench headed by Chief Justice of India Surya Kant, along with Justices Joymalya Bagchi and V Mohana, was hearing a batch of petitions challenging the constitutional validity of the marital rape exception under both the erstwhile Indian Penal Code (IPC) and the Bharatiya Nyaya Sanhita (BNS), a TOI report stated.
The court's observations came in the context of Article 20(1) of the Constitution, which protects a person from being convicted for an act that was not an offence under the law in force at the time it was committed. Under the old Section 375 of the IPC, Exception 2 excluded sexual intercourse or sexual acts by a man with his wife from the definition of rape, subject to the wife's age. The corresponding provision is now contained in Section 63(2) of the BNS.
