In Supreme Court, Centre defends marital rape exception

Centre defended the marital rape exception in laws, arguing its removal could destabilize marriage, while emphasizing the need for legislative wisdom.

The Union government on Thursday defended the marital rape exception in rape laws on the grounds that removing it would destroy the institution of marriage, even as it asked the court to respect the legislature’s wisdom in retaining the exception, arguing that Parliament has done so after understanding complex socio-economic and cultural aspects.

In its affidavit, the government also urged the court to exercise judicial restraint, leaving the regulation of marital relations to the wisdom of Parliament. (ANI)

It also warned of the possible misuse of the law were the exception to be removed.

In an affidavit before the Supreme Court, the government asserted that while a husband has no “fundamental right” to violate the consent of his wife, invoking stringent penal provisions of rape in matrimonial relationships would be “excessively harsh” and “disproportionate”, besides having “far-reaching socio-legal implications” on the institution of marriage in India.

The affidavit, filed through the ministry of home affairs (MHA) in response to petitions challenging the constitutional validity of Exception 2 to Section 375 of the Indian Penal Code (IPC), underscored the complexity of applying rape laws within marriages.

The government asserted that while consent is foundational, breaches of this consent in marriage should be dealt with through less severe penalties than the“ghastly” provisions applied to cases involving strangers.

“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. 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,” it maintained. The provisions cited by the government relate to sexual assault or use of criminal force, as the affidavit maintained that these provisions represent the “sufficiently adequate remedy” and the “delicate balance” that Parliament has sought to maintain.

The affidavit conceded that both parties in a marriage have rights to privacy and dignity even as it added that invoking Section 375/376 of the IPC (rape charges) in matrimonial settings “would necessarily entail consequences” that do not reflect the nuanced reality of conjugal relationships. The affidavit maintained that Parliament has adequately balanced these rights by enacting alternative provisions because applying the harsh label of “rape” to marital settings could potentially destabilise the institution itself.

“Given the nature of the marital institution in our socio-legal milieu, if the legislature is of the view that, for preservation of the marital institution, the impugned Exception should be retained, it is submitted that it would not be appropriate for this Hon’ble Court to strike down the Exception,” noted the affidavit.

A three-judge bench led by Chief Justice of India Dhananjaya Y Chandrachud is seized of a batch of petitions challenging the constitutionality of Exception 2 under Section 375 of the IPC, which exempts a husband from being prosecuted for raping his wife. A bundle of public interest litigations (PILs) has that the exception is discriminatory against married women who are sexually assaulted by their spouses.

The issue also includes the Delhi high court’s split verdict from May 2022, which remains pending for the Supreme Court’s final judgment. In that verdict, one judge declared the marital rape exception as “morally repugnant”, while the other judge ruled that the exception was valid and could continue to exist without violating the law.

Among the pending cases is an appeal by a man whose trial for raping his wife was upheld by the Karnataka High Court in March 2022. The Supreme Court stayed this trial in July 2022.

In January 2023, the Supreme Court appointed advocates Pooja Dhar and Jaikriti S Jadeja as nodal counsel to streamline the proceedings by compiling a common document of relevant materials from all parties.

On September 18, the top court said that it would l decide the legality of the immunity granted to husbands from prosecution for marital rape solely on legal principles, even if the Union government does not take a stand on the issue. Last week, solicitor general Tushar Mehta, representing the government, said that the Centre would submit its affidavit soon.

Right to privacy, dignity and marital bond

The government acknowledged that marital rape poses serious concerns under Article 21 of the Constitution, which guarantees the right to life, privacy and dignity. However, it maintained that within the confines of marriage, these rights require a different legal treatment.

The affidavit underscored that Parliament has carefully weighed the rights and obligations within marriages, choosing to regulate sexual misconduct between spouses through laws that reflect the unique nature of the marital bond.

Conjugal relationships Vs stranger assaults

The government made a significant point of distinguishing between conjugal relationships and non-conjugal ones, citing the “continuing expectation” of sexual access between spouses as a critical factor.

“In an institution of marriage, there exists a continuing expectation, by either of the spouse, to have reasonable sexual access from the other. Though these expectations do not entitle the husband to coerce or force his wife into sex. At the same time, it is submitted, 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,” it stated.

The Centre argued that conflating the two types of relationships would fail to acknowledge the deeply ingrained social and cultural expectations that continue to shape marriages in India.

“Between a husband and wife, who spend their days and nights together, living in a house which, by the dint of their joint effort, they make a home, there exists a bond which defies, and indeed transcends, all known and identifiable parameters. In our country, it is submitted, marital vows are still regarded as inviolable,” the affidavit maintained.

It added: “An institution which creates reciprocal conjugal rights, it therefore renders it incomparable to the concept of ‘consent’ in any other situation outside the marriage. Parliament, after appreciating this subtlety and variation in the concept of ‘consent’ within a marital relationship, has approved the presence of the Impugned provisions while providing for other suitable remedies recognising the constitutional rights of the parties to the marriage.”

Respecting Parliament’s choice

The government highlighted the fact that Parliament had deliberately chosen to retain the marital rape exception, despite recommendations to the contrary by the Justice JS Verma Committee in 2013, which had advocated its removal in the aftermath of the 2012 Delhi gang rape.

“ Parliament, in its wisdom, has decided to maintain the marital rape exception, appreciating the subtlety and complexity of consent within marriage,” noted the affidavit, urging the court to defer to legislative judgment on such sensitive matters.

The affidavit cited multiple socio-economic and cultural factors as reasons for Parliament’s stance, emphasising that India’s legal system must account for its vast diversity.

“In such situations, Parliament makes a choice on factors which may be beyond the judicial realm, the basis of such choice being the Parliament being body directly elected by the people and thereby presumed to be aware of the needs and the understanding of the people on such delicate and sensitive issues.” 

Concerns over misuse of the law

One of the key concerns raised by the government in the affidavit was the potential misuse of marital rape laws if the exception were struck down.

“ In the fast growing and ever changing social and family structure, misuse of the amended provision cannot be ruled out as it would be difficult for a person to prove whether consent was there or not,” the affidavit said.

The question involved in the petitions may not be treated merely as a question concerning constitutional validity of a statutory provision, said the Centre, adding the subject matter has and will have very far-reaching socio-legal implications in the country.

“The matter, therefore, needs a comprehensive approach rather than a strictly legal approach...The issue involved in the present batch of matters is more of a social issue rather than a legal issue, therefore, it is submitted that the same cannot be decided without proper consultation with all the stakeholders or taking the views of all the states into consideration,” the affidavit added.

It attached to the affidavit a chart on the Centre’s consultation with the states and Union territories in response to the former’s letter in May 2022. While 19 states and UTs responded, majority of states ruled by the BJP, including Assam, Gujarat, Uttar Pradesh, Madhya Pradesh, Chhattisgarh, Uttarakhand and Manipur, were in favour of the retention of the provision. Delhi, Karnataka and Tripura suggested the marital rape exception should go.

A call for judicial restraint

In its affidavit, the government also urged the court to exercise judicial restraint, leaving the regulation of marital relations to the wisdom of Parliament.

“It is submitted that while exercising such judicial review on such subjects, is it to be appreciated that the present question is not only a constitutional question, but essentially a social question on which the Parliament, after being apprised and being aware of all sides of the opinion on the present issue, has taken a position...the said discretion exercised by Parliament of the country should be respected and ought not be interfered by the Courts exercising the power of judicial review,” it asserted.