Today, On 3rd October, The Centre argued that the Supreme Court cannot decriminalize marital rape, stating that married women are already protected under existing laws. It clarified that marriage does not nullify a woman’s consent, but violations within marriage are not categorized under rape laws, as other legal remedies are available.
New Delhi: In a counter-affidavit filed by the Union Home Ministry, represented by advocate A.K. Sharma, the Central government supported the current Indian rape law that exempts sexual relations between a husband and wife.
The Centre argued that the issue of ‘marital rape’ is more of a societal concern than a legal one, with significant implications for society at large. It emphasized that, even if criminalizing marital rape is considered, it is not within the Supreme Court’s purview to make that decision.
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The affidavit stated,
“The issue cannot be resolved without proper consultation with all stakeholders and consideration of the views of all States. While 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 nullified 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 further stated that a violation of consent should be punished differently, depending on whether the act occurs within or outside a marriage. The Centre noted that within marriage, there is an ongoing expectation of reasonable sexual access between spouses, but clarified that this does not give a husband the right to force his wife into sexual relations against her will.
However, the Centre argued that it may be excessive and disproportionate to punish a man under anti-rape laws for such an act within marriage. It pointed out that Parliament has already established various remedies to protect a married woman’s consent, including laws against cruelty to married women (Section 498A of the Indian Penal Code), laws protecting the modesty of women, and provisions under the Protection of Women from Domestic Violence Act, 2005.
The affidavit concluded,
“The sexual aspect is just one of many facets of the relationship between husband and wife, which forms the foundation of their marriage. Given the nature of the marital institution in our socio-legal context, if the legislature decides that maintaining the Exception is necessary for preserving the institution of marriage, it is submitted that it would not be appropriate for this Hon’ble Court to strike it down,”
The counter-affidavit was submitted in response to a series of petitions seeking the criminalization of marital rape. The Centre acknowledged that the act commonly referred to as ‘marital rape’ should be illegal and criminalized, but emphasized that the consequences for such violations differ within the context of marriage.
The Central government criticized the petitioners’ perspective, stating that treating marriage as merely a private institution is a one-dimensional view. It argued that the relationship between a married woman and her husband cannot be handled in exactly the same manner as other cases.
Furthermore, it stated that it is the legislature’s responsibility to classify the penal consequences of sexual abuse differently based on various circumstances. The Centre contended that the current law does not disregard consent between spouses, but instead applies a different approach when it occurs within a marriage.
This differentiation, according to the government, aligns with Article 14 (right to equality) of the Constitution, as it refuses to treat two inherently different situations sexual relations within a marriage and those outside of it as equal. The Union government reaffirmed its commitment to the liberty and dignity of women, but argued that marital rape does not need to be criminalized because there are already “suitably tailored penal remedies” in place.
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The case is currently being heard by a Bench led by Chief Justice of India DY Chandrachud, alongside Justices JB Pardiwala and Manoj Misra.
Marital rape excluded from the definition of “rape” under Exception 2 of Section 375 of the Indian Penal Code (IPC). A comparable provision is also included in the newly enacted Bharatiya Nyaya Sanhita (BNS), which replaced the IPC on July 1 of this year.
In 2022, the Delhi High Court issued a divided ruling on whether marital rape should be considered a criminal offense. Following this, the issue was brought before the Supreme Court in September of the same year.