Centre opposes in Supreme Court pleas to criminalise marital rape

The Centre on Thursday opposed before the Supreme Court petitions challenging a criminal law provision that treated ‘marital rape’ as an exception to rape even as it asserted that a woman's consent was not obliterated by marriage and its violation should result in penal consequences.

In an affidavit filed in the top court, the Centre said, “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.”

Maintaining “that the act colloquially referred to as 'marital rape' ought to be illegal and criminalised, it said the consequences of such violations within marriage differ from those outside it. The Centre said Parliament has provided different remedies, including those in criminal laws and the Protection of Women from Domestic Violence Act, 2005, to protect consent within marriage and to ensure serious penal consequences for such violations.

It said that striking down the exception to rape that protected husbands will have a far-reaching effect on the institution of marriage if sexual intercourse or sexual acts by a man with his wife was made punishable as ‘rape’.

“It may severely impact the conjugal relationship and may lead to serious disturbances in the institution of marriage. In the fast-growing and ever-changing social and family structure, misuse of the amended provisions can also not be ruled out, as it would be difficult and challenging for a person to prove whether consent was there or not, the Centre stated.

Parliament has chosen to retain the provision that treated ‘marital rape’ as an exception to rape, the affidavit said, adding that its discretion should be respected and “ought not to be interfered by the courts exercising the power of judicial review”.

Describing it as “more of a social issue rather than a legal one”, it said the same cannot be decided without proper consultation with all the stakeholders or taking the views of all the states into consideration as the outcome “will have a larger impact on society, especially considering the concept of marriage in India, which creates social and legal rights on the part of both individuals and others in the family.”

It said, “The Government attaches highest importance to ending all kinds of violence and offences causing physical, sexual, verbal, emotional and economic abuse including domestic violence against women.”

Currently, a man enjoys immunity from prosecution for rape, if he forces his wife, who is not a minor, to have sex.

As the Bharatiya Nyaya Sanhita (BNS) – which replaced the colonial era IPC on July 1 – failed to criminalise marital rape, a PIL in the Supreme Court has challenged the validity of the provision that treats marital rape as an exception to rape.

Acting on a petition filed by All India Democratic Women's Association (AIDWA) seeking to criminalise marital rape, a Bench led by CJI Chandrachud had on May 17 asked the Centre to spell out its stand on the contentious issue.

AIDWA contended that the marital rape exception went against Article 19(1)(a) (right to freedom of speech and expression) and Article 21 (right to life and liberty) of the Constitution as it took away a married woman's rights to bodily integrity, decisional autonomy, and dignity.

Under BNS too, Exception 2 to section 63 (rape) says that "sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape".

Besides Exception 2 to section 63 of the BNS, AIDWA also challenged the constitutionality of section 67 of the BNS, which prescribes imprisonment ranging from two to seven years for married men who rape their separated wives, contending the penalty was lower than the mandatory minimum 10-year sentence otherwise applicable in cases of rape.

Section 375 of the now repealed Indian Penal Code (IPC) defined rape as sexual intercourse without consent and against the will of a woman. But Exception 2 to Section 375 says sexual intercourse by a man with his wife, who is 15 or above, is not rape even if it is without her consent and against her will. The top court had on January 16, 2023 sought the Centre's response on petitions challenging Exception 2 to Section 375.

In October 2017, the SC ruled that sex with one’s minor wife would amount to rape as it read down the exception to Section 375 IPC which said sexual intercourse by a man with his wife not under the age of 15 would not amount to rape.

Recognising the concept of marital rape for the purpose of abortion, the Supreme Court on September 29, 2022 said a woman becoming pregnant as a result of non-consensual sexual intercourse performed upon her by her husband was entitled to seek medical termination of such pregnancy.

There are three sets of petitions already pending in the SC on the issue. The first one is by a Karnataka man who is being tried for marital rape. The top court had on July 20, 2022 stayed the verdict of the Karnataka High Court that put the man on trial for allegedly raping his wife ignoring Exception 2 to Section 375 of the IPC that treated such cases as an exception to rape.

The second set of petitions arose out of appeals filed against a split verdict delivered by the Delhi High Court on May 11, 2022 on petitions seeking to criminalise marital rape.

The third set of petitions included PILs challenging the constitutional validity of Exception 2 to Section 375 IPC that treated such cases as an exception to the main provision on rape.