Bringing Offence Of 'Rape' Within Marriage 'Excessively Harsh', Other Remedies Exist : Centre Opposes Criminalization Of Marital Rape By Supreme Court

In petitions seeking criminalization of marital rape in India, the Union of India has filed a preliminary affidavit, stating that alternative remedies in law already exist to protect married women against sexual violence and attracting the offense of "rape" to the institution of marriage may be "excessively harsh" and disproportionate.

The Centre claims that to decide the constitutionality of Exception 2 to Section 375 and Section 376B of IPC as well as Section 198B CrPC, a holistic approach is required to be taken, after due consultation with all states.

Further, it avers that the issue raised is more 'social' than 'legal' and criminalization of marital rape falls within the ambit of legislative policy.

Though it concedes that a woman's consent is not obliterated by virtue of marriage, the Centre adds that consequences of violation of consent within marriage shall differ from those outside marriage.

"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", the affidavit states.

The Centre relies on a 2022 report by the National Commission for Women, which suggests that the MRE should be retained because : (i) a married woman cannot be treated at par with an unmarried woman (ii) alternative remedies exist (iii) punitive measures may lead to destitution and vagrancy for the wife and dependent children.

Objecting to the petitioners' claim of marriage being a "private institution", the Centre submits that it is the bounden constitutional duty of the State to regulate, by law, certain aspects of marriage and especially the ensuing rights, duties, obligations and consequences.

In the context of Article 14 of the Constitution, it is asserted that the relationship of marriage creates an intelligible differentia, which has a rational nexus with the object sought to be achieved. As such, the impugned provisions are not "manifestly arbitrary" and ought not to be struck on that ground.

"in an institution of marriage, there exists a continuing expectation, by either of the spouse, to have reasonable sexual access from the other...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...

Given the nature of the matrimonial institution in our socio-legal milieu, if the legislature is of the view that, for preservation of the marital institution, the impugned Exception should be retained...it would not be appropriate for this Hon'ble Court to strike down the Exception."

Insofar as Article 21 of the Constitution, the Centre contends that "it cannot be a fundamental right under Article 21 that breach of consent in all eventualities would necessarily entail the consequences of Section 375/376 of the IPC".

It is further claimed that though a man does not have a fundamental right to violate his wife's consent, attracting the crime of "rape" is considerably "excessively harsh" and disproportionate.

It is also the Union's case that the Court cannot strike down the MRE on the basis of "perceived" consequences (such as, diminishing of value of wife's consent to zero and encouraging husband to have forced sex with his wife).

Countering the petitioners' claim that all forms of sexual violence or breach of consent shall be treated in the exact same manner, the Centre further states that the said approach is unidimensional.

The affidavit adds that in case of a violation, "sufficiently adequate remedies" exist for married women in the form of Sections 354, 354A, 354B and 498A IPC, as well as the DV Act.

The affidavit has been filed through Advocate AK Sharma.

Background

Exception 2 to erstwhile Section 375 of the Indian Penal Code (now Section 63 of BNS) provides exception to non-consensual matrimonial sex from the offence of rape.

A bench comprising CJI DY Chandrachud and Justices JB Pardiwala, Manoj Misra is hearing a challenge to the constitutional validity of the exception as well as Section 9 of the Hindu Marriage Act (relating to restitution of Conjugal Rights).

The multiple pleas raising the issue can be categorized into four kinds – first, an appeal against the Delhi High Court split verdict on the marital rape exception; second, PILs filed against the marital rape exception; third, the plea challenging a Karnataka High Court judgment which sustained the charges framed against a husband under Section 376 IPC for forcible sex with wife; and fourth, intervening applications.

Case Title: Hrishikesh Sahoo v. State of Karnataka And Ors. SLP(Crl) No. 4063-4064/2022 (and connected cases)