The Centre on Thursday filed an affidavit before the Supreme Court opposing the pleas against the criminalisation of marital rape in the country.
The Union Home Ministry in the affidavit, filed through advocate AK Sharma, backed the existing Indian rape law. The government has said that the issue is more of a social one than being a legal one and added that it has a direct bearing on the society in general, according to a report in Bar and Bench.
The Centre argued that if sexual acts by a man with his own wife is made punishable as rape, it may severely impact the conjugal relationship and lead to serious disturbances in the institution of marriage.
The centre also said that it is not within the jurisdiction of the Supreme Court to criminalise marital rape. “…Even if ‘marital rape’ is to be criminalised, it is not up to the Supreme Court to do so,” the Centre argued, as per news agency PTI.
The government said that a woman’s consent is not obliterated by marriage and its violation should result in penal consequences. However, the consequences of such violations within marriage differ from those outside it.
“The (issue) cannot be decided without proper consultation with all the stakeholders or taking the views of all the States into consideration … the act colloquially referred to as ‘marital rape’ ought to be illegal and criminalized. The Central Government asserts that a woman’s consent is not obliterated by marriage, and its violation should result in penal consequences. However, the consequences of such violations within marriage differ from those outside it,” the affidavit stated.
The Centre in its affidavit further said, “Under the exception clause of Section 375 of the Indian Penal Code (IPC), now repealed and replaced by the Bharatiya Nyaya Sanhita (BNS), sexual intercourse or sexual acts by a man with his wife, the wife not being minor, is not rape. Even under the new law, Exception 2 to Section 63 (rape) says that sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”
“Furthermore, it is submitted that striking down the exception 2 of section 375 of IPC on the ground of its constitutional validity will have a far-reaching effect on the institution of marriage if sexual intercourse or sexual acts by a man with his own wife is made punishable as ‘rape’,” the affidavit further stated.
A bench headed by Chief Justice D Y Chandrachud is seized of various pleas on the issue, according to PTI.
The apex court on January 16, 2023 sought the Centre’s response on a clutch of petitions assailing the IPC provision, which provides protection to a husband against prosecution for forcible sexual intercourse if the wife is an adult.
Later, it also issued a notice to the Centre on a similar plea challenging the BNS provision on the issue. The BNS, Bharatiya Nagarik Suraksha Sanhita and the Bharatiya Sakshya Adhiniyam came into effect from July 1, replacing the IPC, Code of Criminal Procedure (CrPC) and the Evidence Act, respectively.