Criminalising marital rape will destroy marriages, govt tells SC

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 Court.

Opposing the criminalisation of marital rape, which is sought by many petitioners before the apex court, the Centre has filed its preliminary counter affidavit in the top court.

The apex court is seized of petitions raising the vexed legal question of whether a husband should enjoy immunity from prosecution for the offence of rape if he forces his wife, who is not a minor, to have sex.

Under the exception clause of Section 375 of the Indian Penal Code (IPC), now repealed and replaced by the Bharatiya Nyaya Sanhita (BNS), sexual intercourse or sexual acts by a man with his wife, the wife not being minor, is not rape.

Even under the new law, Exception 2 to Section 63 (rape) says that “sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape”

“Furthermore, it is submitted that striking down the 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 if sexual intercourse or sexual acts by a man with his own wife is made punishable as ‘rape',” the Centre said in its affidavit.

The Centre said 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.

It said 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 consideration.

“This 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.

It said the issue involved in the matter is more of a social issue rather than a legal issue and the same cannot be decided without proper consultation with all the stakeholders or taking the views of all the states into consideration.

“It is submitted that the act colloquially referred to as ‘marital rape' ought to be illegal and criminalised. 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,” the affidavit said.

“It may severely impact the conjugal relationship and may lead to serious disturbances in the institution of marriage,” it said.