Govt opposes pleas seeking criminalisation of marital rape in Supreme Court

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 has told the Supreme CourtOpposing the criminalisation of marital rape which is sought by many petitioners before the apex court the Centre has filed its preliminary counter affidavit reported news agency PTIThe Supreme Court has received several petitions raising the legal question if whether a husband should enjoy immunity from prosecution for rape if he forces his wife who is not a minor to have sexUnder the exception clause of Section 375 of the Indian Penal Code IPC now repealed and replaced by the Bharatiya Nyaya Sanhita BNS sexual intercourse or acts by a man with his wife ndash who is not a minor ndash against her will is not considered rapeEven under the new law Exception 2 to Section 63 rape states that sexual intercourse or sexual acts by a man with his own wife the wife not being under eighteen years of age is not rapeFurthermore it is submitted that striking down the exception 2 of section 375 of IPC on the ground of its constitutional validity will have a farreaching 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 Centre said in its affidavitConsultation with states must Centre to Supreme CourtIt may severely impact the conjugal relationship and may lead to serious disturbances in the institution of marriage it addedThe Centre said in the fast growing and ever changing social and family structure the misuse of the amended provisions cannot be ruled out as it would be difficult and challenging for a person to prove whether consent was there or notIt said that to decide on the constitutionality of the provision a holistic approach and consultation with all the states needs to be undertaken after taking their views into considerationThis is more so since the issues involved have a direct bearing on the society in general and is a part of Concurrent List of the Seventh Schedule to the Constitution of India the Centre said adding that the matter is more of a social issue rather than a legal one Thus it cannot be decided without proper consultation with all the stakeholders or taking the views of all the states into considerationIt is submitted that the act colloquially referred to as marital rape ought to be illegal and criminalised The central government asserts that a womans 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 said adding that Parliament has provided different remedies including criminal law provisions to protect consent within marriageGiven the nature of the marital institution in our sociolegal milieu if the legislature is of the view that for preservation of the marital institution the impugned exception should be retained it is submitted that it would not be appropriate for this court to strike down the exception the Centre saidGovernment committed to fully meaningfully protect dignity rights of every womanIt said the Government of India is committed to fully and meaningfully protect the liberty dignity and rights of every woman who are the fundamental foundation and a pillar of a civilised societyThe Centres affidavit stated that while a husband certainly does not have any fundamental right to violate the consent of the wife 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 disproportionateIt said that the question involved in these petitions may not be treated merely that concerning constitutional validity of a statutory provision as the subject matter has and will have very farreaching sociolegal implications in the countryThe matter therefore needs a comprehensive approach rather than a strictly legal approach the Centre saidTherefore it is respectfully submitted that if the legislature decides to exempt from the rigour of such a charge and such a label husbands visavis their wives given the intelligible differentia that exists in a marital relationship visavis other relationships the said decision and discretion should be respected and not interfered with especially when a separate suitably tailored penal remedy is provided by the Legislature the governments affidavit stated adding that the outcome of the petition will have a larger impact on the society especially considering the fact that the concept of marriage in India creates social and legal rights on the part of both individuals and others in the familyA bench headed by Chief Justice DY Chandrachud is seized of various pleas on the issueLast year on January 16 the Supreme Court sought the Centres 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 adultLater it also issued a notice to the Centre on a similar plea challenging the BNS provision on the issueWith PTI inputs