"Will Destroy The Institution Of Marriage & Put Entire Family System Under Great Stress": Centre Defends Marital Rape Exception Through Its Counter-Affidavit In Apex Court
The Centre has defended the legal exception decriminalizing marital rape in an affidavit submitted to the Supreme Court, arguing that striking down Exception 2 of Section 375 of the Indian Penal Code (IPC) would have far-reaching consequences for the institution of marriage.
The counter-affidavit, filed in response to petitions challenging the constitutional validity of the exception, stresses that the issue requires a comprehensive socio-legal approach rather than a purely legal one.
Exception 2 of Section 375 IPC, which defines rape, states that sexual intercourse by a man with his wife is not considered rape unless the wife is below 15 years of age. The petitions before the Court challenge this provision, arguing that it violates a woman's right to bodily autonomy and consent within marriage.
In its affidavit, the Centre emphasized that criminalizing marital rape could severely affect conjugal relationships and lead to significant disturbances within the institution of marriage. It expressed concern that such a change could be misused and create challenges in proving consent within marital relationships. "The misuse of the amended provisions cannot be ruled out, as it would be difficult and challenging for a person to prove whether consent was there or not," the Centre stated, cautioning that the issue has far-reaching socio-legal implications that require careful consideration.
The government further argued that Section 375 IPC is a well-considered legal provision that covers all forms of sexual abuse between a man and a woman within its scope. It maintained that if the legislature, after considering all sides, has chosen to exempt husbands from charges of rape against their wives, that decision should be respected, especially when a suitably tailored penal remedy has yet to be provided.
The Centre also pointed to the 2013 amendments to Section 375 IPC, noting that Parliament, after considering the socio-economic impact of removing the exception, deliberately retained it. "This discretion exercised by Parliament should be respected and ought not to be interfered with by the Courts exercising the power of judicial review," the affidavit said.
The affidavit added, "In essence, the right of a woman and the consent of a woman within the institution of marriage is legislatively protected, respected and given its due regard, providing for reasonably stringent consequences in case of violation of the same. These consequences represent the delicate balance that the Parliament has sought to draw and, therefore, merely concentrating on the impugned provisions while ignoring other aspects of the matter would do grave injustice."
Citing the Law Commission’s 172nd Report on the review of rape laws, the Centre noted that the Commission had advised against deleting the marital rape exception due to concerns about excessive interference with marital relationships. Additionally, the affidavit argued that criminalizing marital rape could have serious repercussions on the family structure, potentially leading to broken families and insecurity among women. "In case marital rape is brought under law, it may have the potential to destroy the institution of marriage and put the entire family system under great stress," the Centre submitted.
The government reiterated that the Parliament, as the directly elected representative body, is best suited to decide on such sensitive societal issues, taking into account the needs and understanding of the people. It urged the Court to defer to Parliament's judgment in retaining the exception, highlighting the delicate balance between protecting individual rights and preserving the sanctity of marriage.
"The impugned provisions are based on the rationale of "intelligent differentia of marriage," and hence, the Impugned provisions should be sustained. The case of a married woman and her own husband cannot be treated in a exact same manner as that in other cases as there are other penal consequences that are arising from the said situation," the Centre submitted.
The Centre concluded by rejecting the petitioners' prayers, stating that the implicit nature of conjugal relationships within marriage makes the issue of consent within marriage a matter of complex legislative judgment, which should be approached with caution. "The prayers as made for by the petitioner are vehemently denied in totality and in view of the submissions made by the answering respondent," Centre said in the affidavit.
Pertinently, on May 17, the Court had issued notice in a Public Interest Litigation (PIL) challenging the Marital Rape Exception (MRE) contained in Exception 2 to Section 63 of Bharatiya Nyaya Sanhita, 2023 (BNS). This legal provision exempts acts that would otherwise constitute rape from prosecution if committed by a man on his adult wife.
The PIL filed by the All India Democratic Women Association (AIDWA) through AoR Ruchira Goel also contests the constitutionality of Section 67 of the BNS. This Section imposes a penalty ranging from two to seven years for a married man's commission of the offence of rape on his separated wife- a penalty lower than the mandatory minimum ten-year sentence otherwise applicable to the offence of rape under Section 64 of the BNS.
The Petition highlights that AIDWA previously challenged the marital rape exception under the Indian Penal Code, 1860 (IPC) (Exception 2 to Section 375 and Section 376B) before the Delhi High Court, resulting in a split decision. This challenge has also been brought before the Supreme Court via Civil Appeal No. 4926 of 2022, awaiting final adjudication. "The Petitioner has also challenged the constitutionality of Section 221 of the Bharatiya Nagarik Siiraksha (Second) Sanhita, 2023 (BNSS) as a necessary consequence of the challenge to Section 63 of the BNS, which facilitates the lenient regime under Section 67 of the BNS, prohibiting a court from taking cognizance of the offence thereunder without "prima facie satisfaction of the facts which constitute the offence upon a complaint..by the wife"," the plea reads.
Furthermore, the plea states, "These three provisions ("impugned provisions") make consent to sex by a married woman, irrelevant, and grant blanket immunity to one class of perpetrators—married men—from prosecution for rape. Further, the MRE has at it score, the perpetuation of an unconstitutional objective of subordinating married women's dignity, bodily integrity, and autonomy in pursuit of an unconstitutional object - the purported sanctity of the marital institution over the individual rights of the women forming part of the institution." The Petitioner argued that the MRE violates Articles 14, 15(1), 19(1)(a), and 21 of the Constitution of India. It further stated that striking down the MRE would not amount to the creation of a new offence or require the Court to engage in judicial legislation.
Another plea has been filed by a man, namely, Hrishikesh Sahoo, against the Karnataka High Court Judgment which paved the way for his prosecution for allegedly raping his wife. The Karnataka High Court had on March 23, 2023, that exempting a husband from the allegations of rape and unnatural sex with his wife runs against Article 14 (equality before law) of the Constitution.
One of the pleas is related to the Delhi High Court's split verdict of May 11, 2022, on the issue. The appeal has been filed by a woman, namely Ojaswa Pathak, who was one of the petitioners before the Delhi High Court.
The set of pleas are PILs filed against the IPC provision and have challenged the constitutionality of the marital rape exception under Section 375 IPC (rape) on the ground that it discriminates against married women who are sexually assaulted by their husbands.
Cause Title: Ojaswa Pathak v. Union of India, Hrishikesh Sahoo v. State of Karnataka, & All India Democratic Women Association (AIDWA) v. Union of India [W.P. (C) No. 250/2019, SLP (Crl) No. 4063-4064/2022 & W.P. (C) No. 326/2024]