The Supreme Court revisited the pleas challenging Exception 2 of Section 375 of the Indian Penal Code today, which currently exempts married women from filing rape charges against their husbands.

A counsel for the petitioners informed the bench that the Centre had not yet filed a counter-affidavit, to which the Chief Justice of India remarked that the Centre could present legal arguments even without a formal counter.

In March, Senior Advocate Indira Jaising had reported to the court that a comprehensive compilation related to the case was ready. The Solicitor General, Tushar Mehta, representing the Union of India, indicated at that time that their reply was prepared and pending final vetting.

The Supreme Court had previously issued a notice in September of last year regarding an appeal against the divided verdict from the Delhi High Court on this matter. The appeal was filed by Khushboo Saifi, a petitioner in the original case, after the High Court granted her leave to appeal based on a substantial question of law.

In the split verdict, Justice Rajiv Shakdher declared the provision unconstitutional, arguing that marital rape should be recognized as a criminal offense. Conversely, Justice C Hari Shankar upheld the provision's constitutionality, citing its basis in “intelligible differentia.”

The High Court's judgment arose from a batch of petitions filed by two NGOs, RIT Foundation and All India Democratic Women’s Association, alongside two individuals contesting the constitutionality of Exception 2 to Section 375 and Section 376B of the IPC. The petitions argued that the exclusion of marital rape violates the rights of married women under Articles 14, 15, 19, and 21 of the Constitution.

Justice Shakdher stated that marital rape constitutes rape, highlighting that the impugned exception infringes on a wife’s rights to life, equality, and freedom of expression. He emphasized the need to “exorcise” the outdated notions surrounding this legal exception.

In contrast, Justice Harishankar referenced various interpersonal relationships—such as those between mothers and sons or girlfriends and boyfriends—to underscore that the husband-wife relationship, forged through marriage, is distinct. He cautioned against undermining the sanctity of marriage, asserting that doing so would overlook the realities of such relationships