The Union government has filed an affidavit before the Supreme Court of India, opposing petitions that call for the criminalisation of marital rape. This affidavit, filed in response to the case Hrishikesh Sahoo vs Union of India and anr, emphasizes the complexity of the issue, arguing that it is not solely a legal matter but also a social one, requiring broader consultation.
The petitioners, in this ongoing case, have sought to challenge Exception 2 to Section 375 of the Indian Penal Code (IPC), which excludes sexual relations between a husband and wife from the legal definition of rape. However, the Union government, through the Ministry of Home Affairs, has defended the existing legal framework, asserting that marital rape should not be criminalised without a thorough examination by the legislature and consultation with stakeholders, including State governments.
The Union Government’s Stance
The affidavit, filed by advocate A K Sharma, underlines the government’s commitment to upholding the dignity and liberty of women but argues for differentiated treatment in cases of sexual violations within marriage. It suggests that while a breach of consent within a marriage should not go unpunished, the consequences should differ from those outside marriage.
“The act colloquially referred to as ‘marital rape’ ought to be illegal and criminalised. However, the consequences of such violations within marriage differ,” the affidavit states. The government argues that within the marital institution, there is a reasonable expectation of sexual access, and while coercion is unacceptable, punishing a husband under anti-rape laws might be excessive and disproportionate.
The affidavit also mentions that current laws, such as Section 498A of the IPC, which penalises cruelty towards married women, and the Protection of Women from Domestic Violence Act, 2005, already offer protection for women from non-consensual acts within marriage.
Legal and Social Complexity
The Union government stressed that the Supreme Court should not decide on the matter in isolation, and any change should be the result of a legislative process. The affidavit notes that criminalising marital rape could have far-reaching social implications, and it would not be appropriate for the judiciary to strike down the exception to the rape law without wider consultations.
The government also criticised the petitioners’ approach, which they argue reduces the institution of marriage to a purely private affair. The Union government believes that the relationship between a married woman and her husband cannot be treated in the same manner as other cases of sexual violence and that treating these distinct situations as equal would violate Article 14 of the Indian Constitution, which ensures the right to equality.
Historical and Legal Context
The debate around marital rape in India has been ongoing, with marital rape being excluded from the definition of rape by Exception 2 to Section 375 of the IPC. The new Bharatiya Nyaya Sanhita (BNS), which replaced the IPC on July 1, 2023, has retained this exception. The matter reached a turning point in 2022, when the Delhi High Court delivered a split verdict on whether marital rape should be criminalised. Since then, the issue has been escalated to the Supreme Court for final resolution.
A Bench led by Chief Justice of India DY Chandrachud, along with Justices JB Pardiwala and Manoj Misra, is currently hearing the case. The legal community and activists are keenly watching the developments as the case continues.
Government’s View on Remedies
In defending the current legal framework, the government argued that there are already suitably tailored remedies in place to address violations of consent within marriage. These include provisions under Section 498A for cruelty and laws to protect a woman’s modesty and rights under the Domestic Violence Act. The government argues that these laws are designed to maintain a balance between protecting women’s rights and preserving the marital institution in the socio-legal context of India.
As the Supreme Court continues to deliberate, the Union government’s affidavit has reiterated that the criminalisation of marital rape is a deeply complex issue that requires a broader discussion involving all stakeholders, including States and Parliament. The issue transcends legal boundaries and has deep social implications, making it crucial that any decision taken is reflective of the country’s diverse perspectives on marriage, consent, and personal liberty.