The Union government of India has filed a preliminary affidavit in response to petitions seeking the criminalization of marital rape, arguing that existing legal remedies are sufficient to protect married women from sexual violence. The Center contends that applying the offense of “rape” within the context of marriage could be excessively harsh and disproportionate.
The Affidavit
The government’s affidavit highlights the need for a comprehensive approach, suggesting that the constitutionality of Exception 2 to Section 375 of the Indian Penal Code (IPC) and related provisions should be considered after consulting with all states. It argues that the issue is more “social” than “legal” and falls within the realm of legislative policy, implying that it is the legislature’s responsibility to address marital rape rather than the courts.
The Centre acknowledges that marriage does not erase a woman’s right to consent but insists that violations of consent within marriage should have different consequences compared to those outside of marriage. The affidavit points to existing laws, including Sections 354, 354A, 354B, and 498A of the IPC, along with the Protection of Women from Domestic Violence Act, 2005, as providing adequate legal protections for women in marital relationships.
The Union government also references a 2022 report by the National Commission for Women, which argues for the retention of the marital rape exception (MRE). The report suggests that married women cannot be treated the same as unmarried women, that alternative legal remedies exist, and that criminalizing marital rape could have unintended consequences, such as destitution for wives and their children.
Responding to claims that marriage is a “private institution,” the government asserts that the state has a constitutional duty to regulate marriage and the rights and duties it entails. The affidavit emphasizes that the institution of marriage creates a distinct legal relationship with specific expectations, including “reasonable sexual access” between spouses. This, it argues, provides a sufficient basis for distinguishing between non-consensual sex within marriage and outside it.
Marital Relationship Justifies Different Treatment Under Law
Regarding Article 14 of the Constitution, the Centre argues that marriage creates an “intelligible differentia,” meaning that the marital relationship justifies different treatment under the law. It further states that the impugned provisions are not “manifestly arbitrary” and should not be struck down.
The affidavit also addresses Article 21, which guarantees the right to life and personal liberty, arguing that the breach of consent within marriage does not necessarily require the application of Sections 375 or 376 of the IPC (rape provisions). The government contends that criminalizing marital rape could lead to disproportionately harsh consequences.
The Union concludes by stating that while a man does not have the right to violate his wife’s consent, labeling non-consensual sex in marriage as “rape” is excessive. The government also warns against basing a decision on “perceived” outcomes, such as the devaluation of a wife’s consent or the encouragement of forced sex within marriage.
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