New Delhi: The Union government on Thursday opposed the labelling of marital rape as ‘rape’, saying that it would be “excessively harsh” and that alternative remedies in law exist to protect married women from sexual violence.
The government made its stand clear on marital rape excerption for the first time on record in a preliminary affidavit filed in response to petitions seeking criminalisation of marital rape.
Arguing in favour of the exception, the government said that the issue was more ‘social’ than legal and thus came in the purview of legislative policy, LiveLaw reported.
While the affidavit acknowledges that a husband “does not have any fundamental right to violate the consent of the wife”, it adds that the “consequences of such violations within marriage differ from those outside it.”
“Parliament has provided different remedies, including criminal law provisions, to protect consent within marriage. Sections 354, 354A, 354B, 498A IPC, and the Protection of Women from Domestic Violence Act, 2005, ensure serious penal consequences for such violations”, the affidavit states.
According to LiveLaw, the government relied on 2022 National Commission for Women report which says that the exception should be retained for three reasons: married women cannot be treated at par with an unmarried woman; alternative remedies exist; punitive measures may lead to destitution and vagrancy for the wife and dependent children.
The government also argued that the exception should not be stuck down on the basis of “perceived consequences” such as disregard of wife’s consent.
Rejecting the petitioner’s claim that marriage is ‘private institution’, the government said that it was constitutionally bound to regulate certain aspects of marriage, especially those concerned with duties, obligations and consequences
“In an institution of marriage, there exists a continuing expectation, by either of the spouse, to have reasonable sexual access from the other…these obligations, expectations and considerations, which are completely absent in the case of a stranger who seeks sexual congress, or even from any other intimate relationship, constitutes as a sufficient basis for the Legislature to distinguish qualitatively between an incident of non-consensual sex within the marital sphere and without it…” the affidavit said.
“It is submitted that the act colloquially referred to as ‘marital rape’ ought to be illegal and criminalised. The Central Government asserts that a woman’s consent is not obliterated 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 stated, adding that treating marital rape as rape “may severely impact the conjugal relationship and may lead to serious disturbances in the institution of marriage.”
The affidavit also cited Article 14 of the Constitution, dealing with right to equality, and said that treating sexual violations in the context of marriage and those outside it as “different and unequal” was in sync with Article 14’s mandate.
The batch of petitions is being heard by a bench of Chief Justice of India (CJI) D.Y. Chandrachud and Justices J.B. Pardiwala and Manoj Misra. In 2022, the Karnataka high court had ruled that the marital rape exception was an “age-old, regressive” concept. While the Supreme Court had stayed the trial in the Karnataka case, it had clubbed it with a Delhi high court split verdict on marital rape along with other petitions and PILs filed on the matter.
