Union says Supreme Court can’t criminalize marital rape, married women already protected
The Union government on Thursday submitted an affidavit in the supreme court against the petitions that have demanded the criminalization of marital rape in India [Hrishikesh Sahoo vs Union of India and anr].
Through advocate AK Sharma the union home ministry counter-affidavit supported the existing Indian rape law that has an exception for marital rape.
The Central government claimed that the question at hand is a social one rather than a legal one and has implications for society. However, even if the ‘marital rape’ has to be criminalized it is not the job of the Supreme Court to do so, said the Centre.
It is therefore wrong for the (issue) to be somehow arrived at without following the proper procedure of consulting all the people affected or without considering the opinion of all the states in the nation … This act commonly known as ‘marital rape’ should be made unlawful and should be treated as a criminal offense. The Central Government has submitted that the consent of a woman cannot be said to be extinguished by marriage and that its absence should lead to penal consequences. But the penalty for such violations within marriage is not the same as outside marriage, the affidavit stated.
It stated that a violation of consent should attract different punishments depending on whether it occurs within or outside marriage.
In the context of marriage, there is a continuing expectation that one is to have reasonable sexual access from one’s spouse, the Centre pointed out. It provided that such expectations does not permit a husband to force his wife into having sex.
But it may be excessive and far beyond the call of duty to prosecute a man under anti rape laws for such an act, the Centre submitted.
It also pointed out that the Parliament has already given a number of options for protecting the consent of a married woman in marriage.
These remedies include laws punishing cruelty to married women (Section 498A under the Indian Penal Code), laws punishing acts against the modesty of women and remedies under the Protection of Women from Domestic Violence Act, 2005.
’The sexual contact is only one of the aspects of the marriage relations between the husband and the wife one of which the other is based on the foundation of marriage. According to the nature of marital institution in our socio-legal system if the legislature thinks that in order to protect the institution of marriage the impugned exception ought to be maintained, it is submitted that it will not be proper for this Hon’ble court to set aside the exception,” the affidavit stated.
It was filed in relation to a number of petitions that have recently been filed seeking to criminalize marital rape.
Marital rape should be recognized as a crime and the act outlawed … But effects of the violations herein marriage are not the same.
Central government
The Centre opposed the view of the petitioners where marriage was regarded as a private contractual relationship and called this perspective one dimensional.
It said that the case of the wife and her own husband cannot be viewed in the same way as other cases.
It pointed out that it is up to the legislature to differentiate the penal consequences of sexual abuse in various circumstances.
The Central government stated that what the existing law does not disregard consent to sexual advances between spouses, but simply recognises a different treatment where the two are married.
This approach is also in harmony with Article 14 (equality before the law) of the Constitution as it does not seek to equate two things which are not comparable, in this case, sexual relations within marriage and outside marriage, the Centre stated.
The Union government also affirmed that it cherishes the liberty and dignity of women and that it is not necessary to categorise marital rape as a crime as there are other ‘appropriately targeted penal remedies.’
The matter is presently lying before a Bench comprising of Chief Justice of India, DY Chandrachud and Justices JB Pardiwala and Manoj Misra.
Marital rape is exempted from the definition of “rape” through Exception 2 to section 375 of the Indian Penal Code.
The same is also available in the newly enacted Bharatiya Nyaya Sanhita (BNS) which has replaced the IPC from the 1st of July this year.
In 2022, the Delhi High Court gave a split decision on the issue of whether or not marital rape should be criminalised. The same matter was taken to the Supreme Court in September the same year.
