In a significant legal declaration, the Centre has informed the Supreme Court that criminalising marital rape could drastically disturb the marital bond and the broader institution of marriage. This statement came as part of the government’s preliminary counter-affidavit opposing several petitions advocating for the criminalisation of marital rape.
The debate centers on the exception under Section 375 of the now-repealed Indian Penal Code (IPC), which, under the new Bharatiya Nyaya Sanhita (BNS), continues to exclude marital sexual acts from the definition of rape, provided the wife is not under eighteen years of age.
The government argues that removing this exception could lead to significant conjugal and societal disruptions, pointing out that the fast-evolving social and family dynamics make the misuse of such amended provisions a possibility. Difficulty in proving consent is highlighted as a challenge that could complicate legal proceedings.
Chief Justice D.Y. Chandrachud and his bench are currently reviewing these contentions amid ongoing deliberations on whether a husband should be immunised against prosecution for forcing his wife into sexual acts. This legal question, according to the government, transcends mere legality, requiring a holistic and socially inclusive approach for resolution.
The affidavit further states the need for a broad consultation process, involving all states and relevant stakeholders, given that the issue is part of the Concurrent List of the Seventh Schedule to the Constitution and has far-reaching implications on society.
The Centre has expressed its commitment to protecting women’s liberty, dignity, and rights but suggests that the nature of marital relationships provides a basis for different legal treatment of similar acts within and outside of marriage. It emphasizes that while consent is critical, and its violation within marriage should bear consequences, equating such violations with rape might be considered excessively harsh.
