Law Insider India

Legal News, Current Trends and Legal Insight | Supreme Court of India and High Courts

Marital Rape Case Reaches SC Amid Appointment of Justice Padriwala

2 min read

Paridhi Arya

Published on: May 16, 2022 at 14:40 IST

On May 9, Justice JB Padriwala got elevated to the Supreme Court and on May 11, 2 Judges Bench of Delhi High Court held that the matter of criminalizing marital rape should be addressed by Supreme Court.

Justice Padriwala was formerly Judge of Gujarat High Court. The matter of marital rape and Justice Padriwala are very much knitted together since past.

In 2018, while hearing the issue of marital rape Justice Padriwala called it disgraceful as it destroys trust and confidence people have in marriage.

While hearing the Case on quashing the charges of marital rape Justice Padriwala said, “A large population of women has faced the brunt of the Non-criminalisation of the practice… Marital rape ought to be a crime and not a concept…”

“It has long been time to jettison the notion of ‘implied consent’ in marriage. The Law must uphold the bodily autonomy of all women, irrespective of their marital status.”

The Judge while delivering the judgement in 2018 gave his opinion to criminalise marital rape:

“It is difficult to argue that a complaint of marital rape will ruin a marriage, while a complaint of domestic violence against a spouse will not,” he reasoned.

Adding that “Husbands need to be reminded that marriage is not a license to forcibly rape their wives.”

Ultimately, the Justice Padriwala had to Quash Charges of Marital Rape on husband under Indian Penal Code Section 375 exception 2 although he had strong opposition on exception to marital rape.

In recent, Public Interest Litigation hearing on December 2021 Justice Padriwala stated in the Order “It is high time that a writ court undertakes the exercise of considering whether Exception 2 to Section 375 of the Indian Penal Code could be termed as manifestly arbitrary and makes a woman’s Fundamental Right to sexual autonomy subject to the whims of her husband.” 

Two days after Justice Padriwala being appointed in Apex Court, two Judge Bench of Delhi High Court allowed the Petitioner seeking criminalizing marital rape to approach Apex Court as they split in opinion.

Justice Rajiv Shakdher was of the opinion that exemption to be removed and Justice C Hari Shankar ruled to upheld exemption.

An Appeal from Order of Karnataka High Court of allowing a man to put on Trial for marital rape allowed by Bench led by CJI N V Ramana.

The Karnataka High Court stated that marriage cannot be regarded as a privilege to man to allow his beast come out on wife and so charges under Section 376 were not dropped.