The Centre on Thursday told the Supreme Court that marital rape is a more social issue than a legal one, as it will have a direct effect on society. The government opposed criminalisation of marital rape, saying marriage should be treated differently from other situations.
The top court is examining the constitutional validity of marital rape exception, which allows a man to force himself on his wife without her consent.
The government said that in an institution of marriage, there exists a continuing expectation by a spouse to have reasonable sexual access. “Hence, marriage is to be treated differently from other situations,” it said.
>> Why India's law still allows men to rape their wives
Women activists and anti-rape campaigners term the exception provision in rape law as violative of women's dignity and bodily privacy, saying the essence of the definition of rape lies with the 'consent' of woman.
The Centre, while admitting that marriage does not obliterate the concept of women’s consent, however, said punishing husband for rape is not the appropriate remedy.
“The understanding and the judicial elucidation of the concept of ‘consent’ would vary in case of marital relationship when compared to any other relationship outside the institution of marriage,” it said.
The government further claimed that in an institution of marriage, there exists a continuing expectation, by either of the spouse, to have reasonable sexual access from the other. These exceptions, however, do not allow a man to force himself on his wife without her consent, it said.
“At the same time, 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, constitute 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 government argued.
What the law says
Exception 2 of Section 375, which deals with rape, states that sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape.
The Delhi High Court, after hearing a batch of petitions filed against this provision, had delivered a split verdict in 2022, after which the petitioners moved the Supreme Court.
The Narendra Modi government has taken a consistent and strong stand against criminalisation of marital rape in courts. In its affidavit filed in the Delhi High Court in 2017, the government argued that striking down the exception provision could have a “destabilising effect on the institution of marriage” and become an “easy tool for harassing husbands”.
In its fresh affidavit filed in 2022 also, the government opposed the move, saying the issue has a major social impact.
Earlier, the Gujarat High Court in 2018 and the Chhattisgarh High Court in 2021 ruled that a husband cannot be prosecuted for forcing himself on his wife. The Kerala High Court in 2021 ruled that marital rape is a solid ground for divorce.