In a series of petitions calling for the criminalization of marital rape in India, the Union of India has presented a preliminary affidavit before the Supreme Court, asserting that existing laws already provide sufficient protection for married women against sexual violence. The Centre argues that extending the offense of "rape" to marital relationships could be viewed as "excessively harsh" and disproportionate given the unique dynamics of marriage.

The affidavit emphasizes that addressing the constitutionality of Exception 2 to Section 375 and Section 376B of the Indian Penal Code (IPC), along with Section 198B of the Code of Criminal Procedure (CrPC), requires a holistic approach. This approach, according to the Centre, must involve careful deliberation and consultations with all states to ensure a balanced and fair judgment.

Moreover, the Union of India contends that the issue of marital rape is not purely legal but rather a 'social' concern that falls within the broader domain of legislative policy. This suggests that any decision on the matter should be made by the legislative body, after considering the societal implications rather than purely through a legal lens.

While the government acknowledges that marriage does not automatically nullify a woman's right to consent, it asserts that the consequences of violating consent within a marriage should be treated differently from those in other contexts. The affidavit underlines the importance of this distinction, indicating that the nature of the marital relationship inherently changes the way such offenses should be addressed.

The Centre also highlights that Parliament has already implemented different remedies to safeguard women's rights within marriage. These include various sections of the IPC—namely, Sections 354, 354A, 354B, 498A—and the Protection of Women from Domestic Violence Act, 2005. Together, these laws provide serious penal consequences for violations of consent and other forms of abuse within marriage, offering an alternative to criminalizing marital rape under the offense of "rape".

The Centre, in its affidavit, supports its stance by referring to a 2022 report from the National Commission for Women. The report advocates for the retention of the Marital Rape Exception (MRE) on several grounds: (i) that a married woman cannot be treated on par with an unmarried woman, (ii) that alternative remedies are already available under existing laws, and (iii) that imposing punitive measures might result in destitution and vagrancy for the wife and her dependent children. These points emphasize the unique position of married women and the potential negative consequences of criminalizing marital rape.

The Centre also objects to the petitioners' argument that marriage is a "private institution", maintaining that it is the constitutional duty of the State to regulate certain aspects of marriage by law. This regulation is necessary to safeguard the rights, duties, and obligations of spouses, as well as the consequences that arise from the marital relationship. The State's involvement ensures that marriages are governed fairly and equitably under the law, protecting all parties involved.

When addressing the Article 14 challenge of the Constitution, the Centre asserts that the institution of marriage creates an intelligible differentia—a legal term meaning a reasonable distinction between two classes of individuals—that has a rational nexus with the objective the law seeks to achieve. Based on this, the government argues that the impugned provisions of the IPC are not "manifestly arbitrary" and should not be struck down solely on that basis. This claim further strengthens the Centre's position that the law appropriately recognizes the differences between married and unmarried women in cases involving sexual consent.

The affidavit goes on to explain that within the institution of marriage, there is a continuing expectation from both spouses to have reasonable sexual access to each other. This obligation is fundamentally different from the dynamic between strangers or even individuals in non-marital relationships. The Centre stresses that these expectations and obligations inherent in a marriage offer a sufficient basis for the Legislature to distinguish between non-consensual sex within marriage and outside of it. The nature of the marital bond justifies the retention of the Exception, as it recognizes the complexities and nuances that accompany sexual relations within marriage.

Finally, the Centre reinforces its argument by stating that the socio-legal framework surrounding marriage in India supports the preservation of the marital institution. If the Legislature believes that retaining the Exception is vital for maintaining this institution, the government argues, it would not be appropriate for the Supreme Court to intervene and strike down the Exception. The Centre's position rests on the belief that any changes to such a significant social and legal issue should come from the Legislature, after careful consideration, rather than being dictated by a court ruling.

In relation to Article 21 of the Constitution, the Centre argues that it is not a fundamental right under this Article for every breach of consent to automatically lead to the consequences outlined in Section 375/376 of the Indian Penal Code (IPC). The government emphasizes that while consent is crucial, the application of rape charges under these sections in all circumstances would be inappropriate and "excessively harsh".

The affidavit also clarifies that although a husband does not have the right to violate his wife's consent, the application of the crime of "rape" in such situations is disproportionate. The Centre asserts that the laws governing marital relationships must account for the distinct nature of marriage and should not equate it with non-marital relationships when addressing issues of consent.

The Union further contends that the Marital Rape Exception (MRE) cannot be struck down by the Court based on "perceived" consequences. The petitioners' argument that retaining the Exception diminishes the value of the wife’s consent to zero, or that it may encourage husbands to engage in forced sex with their wives, is speculative in nature according to the government. The Centre maintains that legal provisions must be based on concrete realities, not on assumptions about potential outcomes.

In response to the petitioners' claim that all forms of sexual violence or breaches of consent should be treated in exactly the same way, the Centre highlights the unidimensional nature of this perspective. The government believes that the complexities and nuances of marriage warrant a different approach when addressing violations of consent within the marital sphere, as compared to those that occur outside of it.

Additionally, the Centre reinforces that there are already "sufficiently adequate remedies" available for married women who experience violations within their marriage. These include Sections 354, 354A, 354B, and 498A of the IPC, along with the Domestic Violence (DV) Act. These provisions provide serious penal consequences for violations of a woman's rights and consent within marriage, without the need to label it as "rape."

The affidavit was submitted through Advocate AK Sharma, supporting the government's view that existing legal remedies are robust and tailored to address the specific concerns of married women. This reinforces the government's stance that criminalizing marital rape under the same framework as non-marital rape would not be the appropriate or balanced response in the context of India's legal and social landscape. The Centre believes that the existing laws are adequate to protect women while preserving the institution of marriage, as it stands under Indian law.

Background

Exception 2 to the former Section 375 of the Indian Penal Code (now referred to as Section 63 of BNS) provides a legal exception for non-consensual sex within marriage from being categorized as rape. This legal provision has become a subject of intense debate and is now being challenged for its constitutional validity in the courts.

The matter is currently being heard by a bench that includes Chief Justice of India DY Chandrachud and Justices JB Pardiwala and Manoj Misra. The bench is also examining the validity of Section 9 of the Hindu Marriage Act, which pertains to the restitution of conjugal rights. This provision allows a spouse to petition the court for the return of their partner if they have withdrawn from the marital relationship without reasonable cause.

The legal challenge comprises multiple pleas, which can be divided into four main categories. First, there is an appeal against the Delhi High Court's split verdict on the marital rape exception. The split decision had raised significant legal and social questions about the application of the marital rape exception, leading to further examination by the Supreme Court.

Second, several Public Interest Litigations (PILs) have been filed specifically contesting the validity of the marital rape exception. These PILs are aimed at securing a more progressive legal framework that recognizes non-consensual sex within marriage as a violation of women's rights.

Third, a plea challenging a judgment of the Karnataka High Court has also been brought forward. In this case, the Karnataka High Court upheld the charges against a husband under Section 376 IPC for forcing his wife into sexual intercourse, marking a critical judicial stance on marital rape.

Lastly, the court is also handling intervening applications, which are submissions from third parties seeking to provide their perspective or additional information to assist the court in making its decision.

'Legitimate Expectation': Centre Says Firm No to Criminalising Marital Rape in Submission to SC

In its submission to the Supreme Court, the Centre has taken a clear stand against the petitions calling for the criminalisation of marital rape. The government strongly defends the current legal framework that excludes sexual relations between a husband and wife from the legal definition of rape. The Centre's argument rests on the idea that within the institution of marriage, there is a "legitimate expectation" that spouses will engage in reasonable sexual relations with one another. This expectation, they contend, is a fundamental aspect of marital relationships and should not be equated with non-marital situations.

The Centre further elaborates that the issue of marital rape is more of a social issue than a purely legal one. As such, the government insists that wide-ranging consultations with all relevant stakeholders, including states and social groups, are necessary before any significant legal reforms are made. The Centre is cautious about making hasty changes to the law without considering the complex social and cultural dimensions that surround marriage in India.

In its submission, the Centre also emphasizes that marriage in Indian society is more than just a legal contract. It is seen as a bond of mutual obligations, with both spouses taking sacred vows to uphold their responsibilities toward each other. The government asserts that these obligations form the foundation of the marital relationship and that while a woman's consent within marriage is safeguarded, the laws that govern such matters must differ from those that apply to non-marital contexts. This distinction, the Centre argues, reflects the unique nature of marriage and the expectations that come with it.

The Centre has firmly maintained its position that the existing laws in India already provide sufficient remedies for victims of marital abuse, and changing the current legal framework could potentially undermine the institution of marriage. According to the government, altering these provisions could lead to serious 'socio-legal' problems, complicating the delicate balance that governs marital relationships in Indian society. The Centre believes that any decision related to criminalising marital rape should come from the legislature, not the judiciary, as it has far-reaching social implications that need to be carefully considered.

Currently, the Supreme Court is reviewing an appeal regarding the split verdict delivered by the Delhi High Court on the validity of Exception 2 under Section 375 of the Indian Penal Code. This specific clause exempts husbands from being prosecuted for rape within marriage, which has become a contentious issue. In the High Court’s divided opinion, Justice Rajiv Shakdher declared the provision unconstitutional, while Justice C Hari Shankar upheld it, reflecting the complexity and differing viewpoints on this sensitive matter.

In addition, the Supreme Court has also stayed a Karnataka High Court ruling that refused to dismiss rape charges against a man who had been accused of repeatedly sexually assaulting his wife. This case further exemplifies the growing legal debate over whether the marital rape exemption should continue to exist under Indian law. Petitioners, including activist Ruth Manorama, have strongly argued that the exemption violates women's rights to consent, bodily autonomy, and dignity, pushing for its removal to protect women within marriage.

Despite these increasing calls for reform and the growing momentum behind efforts to change the law, the Centre remains adamant in its stance. The government stresses that the criminalisation of marital rape is a decision that should be left to lawmakers, not the courts, given the potential impact on society. The Centre insists that any changes in this area must be made with careful consideration of the broader social, cultural, and legal context in India. This reflects the government's belief that legislative processes are the most appropriate channel for addressing such complex issues, ensuring that any reforms are made with full awareness of their potential consequences.

By holding firm to this position, the Centre continues to defend the existing legal framework, while acknowledging the need for thoughtful deliberation and wide-ranging consultation before any significant changes are made to the laws governing marital relationships. The government believes that this approach will protect both women's rights and the sanctity of marriage, ensuring a balanced and fair outcome for all parties involved.