"do not entitle the husband to coerce or force his wife"
India’s Central Government has opposed the criminalisation of marital rape in the Supreme Court, stating the matter needs a “comprehensive approach” rather than a “strict legal” one.
The Centre said: “If sexual intercourse or sexual acts by a man with his own wife is made punishable as ‘rape’.
“It may severely impact the conjugal relationship and may lead to serious disturbances in the institution of marriage.
“In the fast-growing and ever-changing social and family structure, misuse of the amended provisions can also not be ruled out.
“A husband certainly does not have any fundamental right to violate the consent of the wife, however, attracting the crime in the nature ‘rape’ as recognised in India to the institution of marriage can be arguably considered to be excessively harsh and therefore, disproportionate.”
Responding to a petition seeking the criminalisation of marital rape, the union government said the provisions are based on the rationale of “intelligent differentia of marriage”, therefore, those should be sustained.
It said a case involving a woman and her husband cannot be treated exactly the same as other rape cases.
But the Centre pointed out that within marriage, it is an ongoing expectation that either spouse has reasonable sexual access from the other.
The government said: “Though these expectations do not entitle the husband to coerce or force his wife into sex, against her or his will.
“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, 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.”
The government maintained that a woman’s consent is not obliterated by marriage, and its violation should result in consequences.
It stated: “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.”
In essence, a woman’s right and consent within marriage is protected, respected and given its due regard, providing for reasonably stringent consequences in case of violation of the crime.
These consequences represent the balance that the Parliament has sought to draw and, therefore, merely concentrating on the provisions while ignoring other aspects of marital rape would do grave injustice.
The Centre said: “It cannot be a fundamental right under Article 21 of the Constitution that breach of consent in all eventualities would necessarily entail the consequences of Section 375/376 of the IPC.
“If the breach of consent results in altered penal consequences thereby creating a sufficient deterrence, the said provision and the exception to Section 375 cannot be faulted.”
The government stated that the right to life under Article 21 includes the right to a healthy marital relationship between spouses.
The issue of criminalising lack of consent in marriage requires careful consideration by lawmakers and the courts to protect the constitutional rights of everyone involved.
Marriage has social aspects and implications, and regulations related to it, as recognized by laws, should not be taken lightly.
The government emphasised that the laws in question do not aim to invade anyone’s privacy.
It added: “Sexual aspect is but one of the many facets of the relationship between husband and wife, on which the bedrock of their marriage rests.
“Care, consideration, and an understanding of one other’s likes and dislikes, hopes and aspirations, are fundamental to the sustenance of a marriage that is to abide.”
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