"A husband has no “fundamental right” to violate his wife's consent (for physical love), but penalising Marital Rape will destroy families: Govt of India

In an affidavit filed in the Supreme Court, the government of India has asserted that while a husband has no “fundamental right” to violate the consent of his wife, invoking stringent penal provisions of rape in matrimonial relationships would be “excessively harsh”.

The introduction of any stringent law on Marital Rape will be “disproportionate”, besides having “far-reaching socio-legal implications” on the institution of marriage in India, it said. 

The Centre defended the marital rape exception in laws, arguing its removal could destabilize marriage, while emphasizing the need for legislative wisdom.

The centre also asked the apex court to respect the legislature’s wisdom in retaining the exception, arguing that Parliament has done so after understanding complex socio-economic and cultural aspects.

It also warned of the possible misuse of the law were the exception to be removed.

The affidavit, filed through the ministry of Home Affairs (MHA) in response to petitions challenging the constitutional validity of Exception 2 to Section 375 of the Indian Penal Code (IPC), underscored the complexity of applying rape laws within marriages.

The government asserted that while consent is foundational, breaches of this consent in marriage should be dealt with through less severe penalties than the“ghastly” provisions applied to cases involving strangers.

“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. Parliament has provided different remedies, including criminal law provisions, to protect consent within marriage. 

Sections 354, 354A, 354B, 498A IPC, and the Protection of Women from Domestic Violence Act, 2005, ensure serious penal consequences for such violations,” it maintained. The provisions cited by the government relate to sexual assault or use of criminal force, as the affidavit maintained that these provisions represent the “sufficiently adequate remedy” and the “delicate balance” that Parliament has sought to maintain.

The affidavit conceded that both parties in a marriage have rights to privacy and dignity even as it added that invoking Section 375/376 of the IPC (rape charges) in matrimonial settings “would necessarily entail consequences” that do not reflect the nuanced reality of conjugal relationships. 

The affidavit maintained that Parliament has adequately balanced these rights by enacting alternative provisions because applying the harsh label of “rape” to marital settings could potentially destabilise the institution itself.

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