Marital Rape: Centre informs SC that striking down exception will have effect in marriage, needs comprehensive approach

New Delhi [India], October 3 : The Centre on Thursday filed affidavit in the matter relating to marital rape and said that striking down 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 and needs a comprehensive approach rather than a strictly legal approach.
The Centre stressed that it should not be interfered unless a separate suitably tailored penal remedy is provided by the legislature.
The centre affidavit was filed in response to the petitions challenging the constitutional validity of the Exception 2 to Section 375 of Indian Penal Code, which decriminalises rape by a husband on his wife.
Notably, Exception 2 to Section 375 of the Indian Penal Code, which defines rape, states that sexual intercourse by a man with his wife is not rape, unless the wife is below 15 years of age.
Centre informed the Supreme Court that criminalisation of marital rape may severely impact the conjugal relationship and may lead to serious disturbances in the institution of marriage.
"In the fast-growing and ever-changing social and family structure, misuse of the amended provisions can also not be ruled out, as it would be difficult and challenging for a person to prove whether consent was there or not," Centre said in the affidavit.
In its affidavit, the Centre informed the SC that matter relating to marital rape will have very far-reaching socio-legal implications in the country and therefore, need a comprehensive approach rather than a strictly legal approach.
The Centre explained that Section 375 covers within its ambit all acts, from single act of unwilling sex to gross perversion and said that Section 375 is a well-thought of provision, that tries to cover every act of sexual abuse by a man on a woman within its four walls.
"Therefore, it is respectfully submitted that if the legislature decides to exempt, from the rigour of such a charge, and such a label, husbands, vis-a-vis their wives, given the intelligible differentia that exists in a marital relationship vis-a-vis 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 Centre submitted.
The Centre added, "while exercising such judicial review on such subjects (marital rape), it is to be appreciated that the present question is not only a constitutional question, but essentially a social question on which the Parliament, after being apprised and being aware of all sides of the opinion on the present issue, has taken a position."
It informed the top court that the Parliament, after being apprised and being aware of all sides of the opinion on the present issue has decided to retain Exception 2 to Section 375 of IPC in 2013 while amending the said section in the year 2013.
The Centre further submitted that the Legislature in its wisdom after considering the socio-economic impact of such a recommendation, deliberately withheld from deleting the impugned provision from the statute books.
"In this regard, it is further submitted that the said discretion exercised by Parliament of the country should be respected and ought not be interfered by the Courts exercising the power of judicial review," Centre said to SC.
"In essence, the right of a woman and the consent of a woman within the institution of marriage is legislatively protected, respected and given its due regard, providing for reasonably stringent consequences in case of violation of the same. These consequences represent the delicate balance that the Parliament has sought to draw and, therefore, merely concentrating on the impugned provisions while ignoring other aspects of the matter would do grave injustice," it added.
Centre further submitted that in matters falling squarely within the domain of the regulation of marital relationship between spouses, thereby being a societal issue, due deference be exercised while testing the validity of legislative choice made by the Parliament.
"In such situations, the Parliament makes a choice on factors which may be beyond the judicial realm, the basis of such choice being the Parliament being body directly elected by the people and thereby presumed to be aware of the needs and the understanding of the people on such delicate and sensitive issues," it said.
The Centre cited the Law Commission 172nd Report on Review of Rape Laws in relation to Exception 2 of Section 375 of IPC whereby it has observed not to delete the exception because of excessive interference with the marital relationship.
Further, Centre said that there is also a provision under the law for cruelty against women and in case marital rape is brought under law, it may have potential to destroy the institution of marriage and the entire family system will be under great stress.
"Broken families would further lead to insecurity among women of these families," Centre submitted, adding that the parliament in its wisdom has retained Exception 2 of Section 375 of IPC, it is clear that different commissions have taken divergent views on this subject over different points in time.
"The prayers as made for by the petitioner are vehemently denied in totality and in view of the submissions made by the answering respondent," Centre said in the affidavit.
The affidavit that deals with various aspects relating to the issue also said that in an institution of marriage, there exists a continuing expectation, by either of the spouse, to have reasonable sexual access from the other.
The Centre further submitted that due to the implicit nature of conjugal relationship within the institution of marriage, the question of framing a law that tackles the breach of consent within the institution of marriage becomes a question of delicate legislative balance considering the competing positions.
Various petitions were filed in the Supreme Court challenging the constitutional validity of the exception to marital rape issue.
One petition is against Karnataka HC judgement, which declined to quash the charge of rape against a man accused of raping and keeping his wife as a sex slave.
Earlier, the All India Democratic Women's Association (AIDWA) among others moved the Supreme Court against Delhi High Court's split verdict on issue relating to criminalising marital rape matter.
Two- judges Bench of Delhi High Court on May 12, 2022, pronounced a split verdict on issue relating to criminalising marital rape. Delhi HC's Judge Justice Rajiv Shakdher rules in favour of criminalising while Justice Hari Shankar disagreed with the opinion and held that Exception 2 to Section 375 does not violate the Constitution as it is based on intelligible differences.
AIDWA, in its plea, had said that the exception allowed to marital rape is destructive and in opposition to the object of rape laws, which clearly ban sexual activity sans consent. It places the privacy of a marriage at a pedestal above the rights of the woman in the marriage, the plea said.
The petition said that Marital Rape Exception is in violation of Articles 14, 19(1)(a) and 21 of the Constitution.