The Centre said that it is not as if a woman’s consent is obliterated by marriage, but only that consent violations within marriage would not attract rape law; there are other remedies.
On Thursday, the Union government submitted an affidavit to the Supreme Court opposing petitions seeking the criminalization of marital rape in India [Hrishikesh Sahoo vs Union of India and anr].
In the counter-affidavit filed by advocate AK Sharma, the Union Home Ministry supported the current Indian rape laws, which exempt sexual relations between a husband and wife from being considered rape.
The Central government contended that the issue is primarily social rather than legal, with wide implications for society. The Centre argued that even if ‘marital rape’ were to be criminalized, it is not within the purview of the Supreme Court to implement such changes.
“The (issue) cannot be decided without proper consultation with all the stakeholders or taking the views of all the States into consideration … the act colloquially referred to as ‘marital rape’ ought to be illegal and criminalized. The Central Government asserts that a woman’s consent is not obliterated by marriage, and its violation should result in penal consequences. However, the consequences of such violations within marriage differ from those outside it,” the affidavit said.
The Centre argued that a breach of consent should be penalized differently based on whether it happens within or outside a marriage.
It noted that within a marriage, there is an ongoing expectation of reasonable sexual access between spouses. However, the Centre emphasized that this expectation does not give a husband the right to force his wife into sexual activity against her will.
Nevertheless, the Centre stated that it may be excessive and disproportionate to subject a husband to anti-rape laws for such conduct.
The Centre further emphasized that Parliament has already established various legal remedies to safeguard a married woman’s consent within marriage.
These include provisions for punishing cruelty against married women (Section 498A of the Indian Penal Code), laws addressing offenses against a woman’s modesty, and protections under the Protection of Women from Domestic Violence Act, 2005.
“The sexual aspect is but one of many facets of the relationship between husband and wife, on which the bedrock of their marriage rests … Given the nature of the marital institution in our socio-legal milieu, if the legislature is of the view that, for preservation of the marital institution, the impugned Exception should be retained, it is submitted that it would not be appropriate for this Hon’ble Court to strike down the Exception,” the affidavit added.
The counter-affidavit was submitted in response to a series of petitions advocating for the criminalization of marital rape.
The act colloquially referred to as ‘marital rape’ ought to be illegal and criminalized … However, consequences of such violations within marriage differ.
Central government
The Centre criticized the petitioners for viewing marriage as merely a private institution, describing this perspective as one-dimensional.
It argued that the relationship between a married woman and her husband cannot be equated to other scenarios in the same manner.
The Centre further stated that it is the responsibility of the legislature to differentiate the legal consequences of sexual abuse based on varying circumstances.
The Central government argued that the current law does not overlook consent between spouses but treats it differently when it occurs within a marriage.
This distinction aligns with Article 14 (right to equality) of the Constitution, as it avoids equating two inherently different situations—sexual relations within marriage and outside of marriage, the Centre stated.
The Union government also emphasized its commitment to upholding women’s liberty and dignity, arguing that there is no need to criminalize marital rape because there are other “appropriately tailored penal remedies” available.
Marital rape is exempted from the definition of “rape” under Exception 2 of Section 375 of the Indian Penal Code (IPC).
A similar provision exists in the newly introduced Bharatiya Nyaya Sanhita (BNS), which replaced the IPC on July 1 this year.
In 2022, the Delhi High Court delivered a split verdict on whether marital rape should be criminalized, and the case was subsequently brought before the Supreme Court in September of the same year.
Note: The heading of the story initially said “decriminalise” instead of “criminalise”. The error has been corrected and is regretted.
