New Delhi/IBNS: The Supreme Court on Thursday raised a question on whether striking down immunity given to husbands in the marital rape cases will create a new offence, media reports said.

A three-judge bench comprising Chief Justice of India DY Chandrachud, Justices JB Pardiwala and Manoj Misra referred to the Section 375 of Indian Penal Code, now Bharatiya Nyaya Sanhita, that prevents the wives from prosecuting their husbands for rape.

Under the section, sexual intercourse or sexual act by a man with his wife is not rape unless the woman is a minor.

CJI Chandrachud said as quoted by The Indian Express, "You say that striking down the marital rape exception does not create a new offence. Parliament intended, when it enacted the exception, that an act of sexual intercourse or a sexual act by a man with a woman who is his wife above the age of 18 should not be regarded as constituting the offense of rape.

"Now if we strike down the exception… will we be creating a new offence? Does the court have the power independently to test the validity of the exception?"

When senior advocate Karuna Nandy said the Hale's principle, which was followed in England, does not hold a man guilty for raping his wife, the CJI said India government had given up the Hale's principle in its counter affidavit.

The CJI said as quoted by the daily, "They said that they don’t subscribe to the view that entering upon a wedlock is an absolute consent for a woman to be subjected to intercourse by a husband.

"They accept the fact that consent is necessary… Having done that, they said there are other provisions such as domestic violence act, cruelty as a ground for divorce, and so on and so forth."

The government has given up "in part", argued advocate Nundy.

The top court court has also noted the central government's argument that striking down the exception of criminalising the non-consensual sexual act between a man and his wife will destabilise faith in the institution of marriage.

"Marriage is not institutional but personal – nothing can destroy the institution of marriage except a statute that makes marriage illegal and punishable," Nundy said as quoted by The Indian Express.

The Centre has opposed the criminalisation of marital rape in its affidavit in the Supreme Court calling it "extremely harsh and disproportionate".

"It is submitted that a husband certainly does not have any fundamental right to violate the consent of the wife, however, attracting the crime in the nature “rape” as recognised in India to the institution of marriage can be arguably considered to be excessively harsh and therefore, disproportionate.

"This Hon’ble Court has further adopted a balancing approach in order to reconcile the perceivable engagement between fundamental rights," the affidavit said.