NEW DELHI: If sexual intercourse or sexual acts by a man with his own wife without her consent is made punishable as “rape”, it may severely impact the conjugal relationship and lead to serious disturbances in the institution of marriage, the Centre told the Supreme Court on Thursday.
In an affidavit filed in the top court, the Centre defended a criminal law provision which protected husbands from being prosecuted for rape for having sex with his wife against her will.
“In the fast growing and ever-changing social and family structure, the 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,” the Centre said, opposing petitions challenging a criminal law provision that treated ‘marital rape’ as an exception to rape.
It asserted that a woman’s consent was not obliterated by marriage and its violation should result in penal consequences and “that a husband certainly does not have any fundamental right to violate the consent of the wife”. It said attracting the crime in the nature “rape” as recognised in India to the institution of marriage could be arguably considered to be excessively harsh and, therefore, “disproportionate”.
Maintaining that the act colloquially referred to as “marital rape” ought to be illegal and criminalised, it said the consequences of such violations within marriage differ from those outside it. The Centre said Parliament had provided different remedies, including those in criminal laws and the Protection of Women from Domestic Violence Act, 2005, to protect consent within marriage and ensure serious penal consequences for violations.
Parliament has chosen to retain the provision that treated “marital rape” as an exception to rape, the affidavit said, adding that its discretion should be respected and “ought not to be interfered by the courts exercising the power of judicial review”. Acting on a petition filed by All India Democratic Women’s Association seeking to criminalise marital rape, a Bench led by CJI DY Chandrachud had on May 17 asked the Centre to spell out its stand on the contentious issue.