‘Don’t Toughen Marital Rape Penalties, Can Impact Institution of Marriage’: Centre To SC

The central government has asked the Supreme Court not to criminalise marital rape as it can "have a far-reaching effect on the institution of marriage." It added that alternative legal remedies exist that protect married women from sexual offences, so the need for tougher marital rape penalties may be "excessively harsh." The bench - consisting of the Chief Justice of India DY Chandrachud and Justices JB Pardiwala and Manoj Misra - was also told that the matter entails "a comprehensive approach" instead of a "strict legal approach" to avoid serious socio-legal ramifications in a marriage-centric society like India.

'Parliament Has Provided Different Remedies,’ Centre’s Affidavit On Marital Rape

The preliminary affidavit, filed via Advocate AK Sharma, acknowledged that though marriage doesn't dissolve the importance of sexual consent for a woman, the consequences of its violation within that relationship should be different from those outside marriage. Also, other options protect "consent within marriage," it added.

"Parliament has provided different remedies, including criminal law provisions, to protect consent within marriage. Sections 354 (74 BNS), 354A (75 BNS), 354B (76 BNS), 498A (85 BNS) IPC, and the Protection of Women from Domestic Violence Act, 2005, ensure serious penal consequences for such violations", the affidavit by the Union Home Ministry stated, as per Live Law. 

Centre opposes pleas in #SupremeCourt to criminalise marital rape.

Centre says 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.

Centre asserts… pic.twitter.com/SerIiy6F0d

— Live Law (@LiveLawIndia) October 3, 2024

It highlighted that for the "preservation of the marital institution" and because of the position marriage has in "our socio-legal milieu," "it would not be appropriate for this court to strike down the exception."

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The affidavit also told the top court that the Centre needs to take a holistic approach, after consulting all states, to decide on the constitutionality of Exception 2 to Section 375 and Section 376B of IPC and Section 198B CrPC.

• Exception 2 to Section 375 mentions sexual intercourse between spouses isn't rape, except in the case if the wife is less than 18 years. BNS or the Bharatiya Nyaya Sanhita follows this ruling, too.
• Section 376B states that a man, who has intercourse with his wife living separately without her consent, is liable for imprisonment and a fine.
• As per Section 198B, a court won't take cognizance of an offense under Section 376B except for the case where the wife files a complaint against her husband.

"The Union’s argument that marital rape criminalization may be "excessively harsh" reflects a reluctance to address the deeper issue of consent within marriage. While existing legal remedies like the Domestic Violence Act provide some protection, they fail to directly confront the reality of sexual violence in marriage," said Dr Rennie Joyy, Lawyer and Founder Aalekh Foundation.

"Consent must remain central, regardless of marital status, and treating non-consensual sex differently within marriage weakens this principle. A progressive legal framework is essential to ensure that marriage does not become a shield for sexual violence. It is time for laws to fully recognize and protect a woman’s autonomy within her marriage," she added.

According to Live Law, for the plea, the Union of India depended on a National Commission for Women report of 2022, which suggested that the Marital Rape Exception (MRE) should be kept as is because:

• A married woman and an unmarried woman cannot be treated the same.
• Alternative remedies exist.
• Penal steps may result in poverty and homelessness for wife and dependent children.

Rape Is Rape, Marriage Or Not

The government's National Family Health Survey, conducted from 2019 to 2021, stated that 6% of women aged 18-49 reported sexual violence by a spouse. Further, about 18% of married women said they cannot refuse sex if the husband so demands.

Given this grim data, the government's stand in the Supreme Court encourages a deep-rooted evil the society has supported for long, albeit slyly, which is that the man owns his wife's body. So, "consent" after marriage is often turned into a joke. 

But rape is rape, whether done by a husband, kin, or a stranger. When "consent" ceases to exist, a sexual act should be considered "rape," and the punishment should be the same.

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