In petitions seeking the criminalization of marital rape in India, the Union government has filed a preliminary affidavit, arguing that existing legal remedies already protect married women from sexual violence. The Centre claims that categorizing non-consensual sex within marriage as “rape” could be “excessively harsh” and disproportionate.
The affidavit, submitted by Advocate AK Sharma, states that a “holistic approach” is required to determine the constitutionality of Exception 2 to Section 375 and Section 376B of the Indian Penal Code (IPC), along with Section 198B of the Criminal Procedure Code (CrPC). The Centre asserts that consultation with all states is necessary before making any changes and that criminalizing marital rape falls under the realm of legislative policy, not judicial intervention.
Although the Centre acknowledges that a woman’s consent is not invalidated by marriage, it argues that the consequences of violating consent within marriage should differ from those outside it. Citing various legal provisions such as Sections 354, 354A, 354B, and 498A of the IPC, along with the Protection of Women from Domestic Violence Act, 2005, the affidavit claims these laws already provide serious penalties for violations within marriage.
The government also relies on a 2022 report from the National Commission for Women, which recommends retaining the marital rape exception (MRE). The report suggests that married women cannot be equated with unmarried women and warns that punitive measures could lead to economic hardships for the wife and her children.
The affidavit challenges the petitioners’ argument that marriage is a “private institution,” stating that it is the constitutional duty of the State to regulate certain aspects of marriage, including the rights, duties, and consequences involved. The Centre further argues that the institution of marriage creates a distinction that justifies a different legal treatment of sexual relations within marriage compared to outside.
In relation to Article 14 of the Constitution, the government claims that marriage constitutes an intelligible differentia that justifies the impugned provisions. The affidavit adds that the legislature has the right to retain the marital rape exception if it believes it is necessary to preserve the institution of marriage.
Regarding Article 21, the Centre asserts that not every violation of consent should automatically lead to charges under Section 375/376 of the IPC. While acknowledging that a man does not have the right to violate his wife’s consent, the Centre argues that labeling such acts as “rape” would be excessively punitive.
The Centre also counters the petitioners’ claim that all forms of sexual violence or breach of consent should be treated identically, describing this approach as overly simplistic. It reiterates that alternative remedies, including provisions of the IPC and the Domestic Violence Act, offer sufficient protection for married women.
The affidavit comes in the backdrop of multiple petitions challenging the constitutional validity of the marital rape exception and related laws. A bench comprising Chief Justice of India DY Chandrachud and Justices JB Pardiwala and Manoj Misra is currently hearing the case, which includes appeals against the Delhi High Court’s split verdict on the matter, as well as challenges to a Karnataka High Court judgment that upheld charges against a husband under Section 376 IPC for forcing his wife into sex.
The ongoing hearings will decide the fate of the marital rape exception, with significant social and legal implications for marital rights and sexual consent in India.
