Marital rape: Centre argues against terming it as 'rape' in Supreme Court

The Centre argued that the complexities of marriage differentiate non-consensual sex within it from similar acts outside while acknowledging a husband has no right to violate his wife's consent

In a statement before the Supreme Court, the central government on Thursday opposed the outright classification of marital rape as ‘rape’, describing the term as “excessively harsh and therefore, disproportionate” in the context of marriage.

While acknowledging that a husband does not have a fundamental right to violate his wife’s consent, the government argued that the institution of marriage introduces complexities that distinguish non-consensual sex within marriage from similar acts outside it, reported The Indian Express.

“It is submitted that a husband certainly does not have any fundamental right to violate the consent of the wife, however, attracting the crime in the nature of ‘rape’ as recognised in India to the institution of marriage can be arguably considered to be excessively harsh and therefore, disproportionate,” reads the affidavit submitted by the Ministry of Home Affairs. This marks the first time the Centre has officially opposed the removal of the marital rape exception in Indian law.

 

Previously, in 2022, during hearings before the Delhi High Court, the government had maintained that the issue required “wider consultations”, with ongoing reviews of the existing criminal laws. At that time, the Union government refrained from taking a clear stance on the matter, citing the need for further discussions before any legislative action could be taken.

 

Debate over marital rape legislation

The two-judge bench of the Delhi High Court delivered a split verdict in 2022, with Justice Rajiv Shakdher in favour of striking down the marital rape exception. He lamented the absence of direct government participation in the arguments, stating that the “arguments would have been richer had Mehta, ie, learned Solicitor General, assisted the court in the matter.”

In its 49-page affidavit, the Centre stated that while marital rape “ought to be illegal and criminalised”, it refrained from endorsing the term ‘rape’ for such violations within marriage. The government contended that the consequences of non-consensual acts within a marriage differ from those outside it and cited existing legal provisions to protect the wife’s consent within marriage, including Sections 354, 354A, 354B, and 498A of the Indian Penal Code (IPC), as well as the Protection of Women from Domestic Violence Act, 2005.

Parliament urged to address marital rape

The affidavit further highlighted that marital rape is an issue that Parliament must address, noting that the law defines rape under Section 63(2) of the Bharatiya Nyaya Sanhita (BNS) and Section 375 of the IPC. The law lists seven notions of consent which, if violated, constitute rape. However, a critical exemption exists: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.” This exemption effectively grants a husband legal rights to engage in consensual or non-consensual sexual acts with his wife, which petitioners have been challenging.

In 2022, the Karnataka High Court allowed a trial against a husband for rape, describing the marital rape exception as an “age-old… regressive” concept. The court said, “Rape is rape, be it performed by a man the ‘husband’ on the woman ‘wife’.” Although the trial was stayed by the Supreme Court, it accepted to hear the broader challenge against the marital rape exception, combining it with appeals that emerged from the Delhi High Court split verdict.

Government defends marital rape exception

The Centre, in its affidavit, also acknowledged that non-consensual acts within marriage, including forced sex, already attract penal consequences under the Domestic Violence Act (DVA) and other provisions of the penal code. However, it argued that labelling such acts as ‘rape’ could destabilise the ‘delicate balance’ of conjugal relationships and lead to significant disturbances within the institution of marriage.

While maintaining that a woman’s consent is equally valid inside and outside marriage, the government contended that marital relationships introduce additional complexities that require different legal treatment. “This Hon’ble Court has further adopted a balancing approach in order to reconcile the perceivable engagement between fundamental rights,” the affidavit stated.

In addition, the Centre invoked Article 14 of the Constitution, which guarantees the right to equality, to argue that sexual violations in marital and non-marital spaces are distinct situations that warrant separate legal treatment. “To declare that Section 375/376 of IPC be applicable to the institution of marriage would result in unsettling the delicate balance and sensitivity of the issue at hand,” the Centre argued.

States favour retaining marital rape exception

The government also disputed the petitioners’ assertion that marriage is purely a private institution. “This understanding is incorrect as marriage, in any societal setup, also entails numerous social and public aspects,” the affidavit noted, emphasising the “continuing expectation” of sexual access within marriage, even though such expectations do not permit coercion.

Furthermore, the Centre revealed that a majority of states that responded to its inquiry favoured retaining the marital rape exception. Out of 15 states, only Karnataka, Tripura, and Delhi opposed the provision, while Assam, Chhattisgarh, Goa, Uttar Pradesh, Gujarat, Madhya Pradesh, Manipur, Uttarakhand, and Ladakh supported it. The National Commission for Women was also in favour of keeping the marital rape exception intact.