The Union Government has filed an affidavit before the Supreme Court opposing petitions that seek to criminalize marital rape in India.

Filed on Thursday, the affidavit backs the current legal framework, which includes an exception for sexual relations between a husband and wife under the Indian Penal Code (IPC).

The Centre contends that criminalizing marital rape falls within the purview of the legislature, not the judiciary and that existing legal provisions adequately protect married women.

The affidavit, submitted by advocate AK Sharma on behalf of the Union Home Ministry, emphasizes that the issue is more social than legal.

It further asserts that while a woman’s consent is not entirely obliterated by marriage, violations of consent within a marriage do not necessarily warrant the same penal consequences as those outside the marital institution.

Legal Remedies Already Exist for Married Women

The government has stated that while marital rape should be illegal, it is not appropriate for the Supreme Court to criminalize it.

The affidavit argues that breaches of consent within marriage should be treated differently, adding that Parliament has already provided several legal remedies to protect a married woman’s rights.

These include Section 498A of the IPC, which penalizes cruelty against married women, as well as provisions under the Protection of Women from Domestic Violence Act, 2005, and laws against outraging a woman’s modesty.

The Centre underscored that marriage inherently includes a mutual expectation of reasonable sexual access between spouses.

However, it clarified that this expectation does not extend to coercing a spouse into non-consensual sexual acts.

Despite this clarification, the government contends that it may be excessive to impose anti-rape laws on husbands for such violations within marriage, as the relationship is fundamentally different from other contexts.

Parliament’s Role and Article 14

The Central Government also defended its position by invoking Article 14 of the Constitution, which guarantees the right to equality.

The affidavit asserts that it is inappropriate to treat sexual relations within marriage and those outside of it as legally equivalent.

It is, therefore, the legislature’s role to determine the specific penal consequences for marital consent violations, rather than treating marital rape under the same legal framework as non-marital rape.

In line with this, the affidavit criticized the petitioners’ arguments for focusing narrowly on the private nature of the marital institution.

The government warned that such a view overlooks the complex social and legal dimensions that marriage entails in India.

Supreme Court Proceedings and Bench Details

The issue has been under consideration by a Supreme Court Bench headed by Chief Justice of India DY Chandrachud, along with Justices JB Pardiwala and Manoj Misra.

The petitions challenging the marital rape exception emerged after the Delhi High Court’s 2022 split verdict on the matter. Since then, the Supreme Court has been tasked with resolving this legal quandary.

The Centre’s affidavit also highlights that a similar provision on marital rape has been retained in the newly enacted Bharatiya Nyaya Sanhita (BNS), which replaced the IPC earlier this year.

The government’s position remains that while marital rape should not go unaddressed, existing laws provide “suitably tailored” remedies without the need for its criminalisation.

• Party Names: Hrishikesh Sahoo vs Union of India & Anr.
• Bench Details: Chief Justice DY Chandrachud, Justices JB Pardiwala, and Manoj Misra