New Delhi: The Union government on Thursday filed an affidavit in the Supreme Court opposing the petitions seeking the criminalisation of marital rape, saying that in matters falling squarely within the domain of the regulation of marital relationship between spouses, a societal issue, due deference be exercised while testing the validity of legislative choice made by the Parliament.
Marital rape is excluded from the ambit of "rape" by way of Exception 2 to Section 375 of the Indian Penal Code (IPC).
In the counter-affidavit, the Union Home Ministry said given the nature of the marital institution in our socio-legal milieu, if the legislature is of the view that, for the preservation of the marital institution, the impugned exception should be retained, it is submitted that it would not be appropriate for the apex court to strike down the exception.
The affidavit said the government of India is committed to fully and meaningfully protect the liberty, dignity and rights of every woman, who are the fundamental foundation and a pillar of a civilised society.
The government said it attaches the highest importance to ending all kinds of violence and offences causing physical, sexual, verbal, emotional and economic abuse including domestic violence against women.
The government asserted 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," said the affidavit filed in the apex court.
The government said that Sections 354, 354A, 354B and 498A and the Protection of Women from Domestic Violence Act, 2005 provide for a sufficiently adequate remedy which includes penal consequences thereby protecting the right and dignity of a woman even within the institution of marriage.
It added that this distinction, premised upon the obvious societal and logical difference between the actions taking place within the institution of marriage as opposed to actions outside the marital institution, is a justifiably reasonable consequence, which cannot be termed to be falling foul of Article 14 and/or Article 21 of the Constitution.
The Centre said 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 a 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”, said the affidavit.
The government said 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.
The government said the question involved in the petition may not be treated merely as a question concerning the constitutional validity of a statutory provision as the subject matter has and will have very far-reaching socio-legal implications in the country. It added that the matter, therefore, needs a comprehensive approach rather than a strictly legal approach.
The affidavit said Section 375 is a well-thought-of provision, which 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-à-vis their wives, given the intelligible differentia that exists in a marital relationship vis-à-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," said the affidavit.
The affidavit 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 if sexual intercourse or sexual acts by a man with his own wife is made punishable as "rape".
"It 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," said the affidavit.
The government said the issue cannot be decided without proper consultation with all the stakeholders or taking the views of all the states into consideration, and the act colloquially referred to as 'marital rape' ought to be illegal and criminalised.
The government said that in an institution of marriage, there exists a continuing expectation, by either of the spouses, to have reasonable sexual access from the other. It added that these expectations do not entitle the husband to coerce or force his wife into sex, against her or his will, and since marriage is an institution which creates reciprocal conjugal rights, it therefore renders it incomparable to the concept of "consent" in any other situation outside the marriage.
The government said it is settled law that as per Hindu Personal Law, especially concerning the Hindu Marriage Act, 1955, marriage is not just a union, it is a sacrament. In other words, it is settled law that Hindu personal law attaches a greater degree of sanctity to the institution of marriage.
The government said that other forms of personal laws recognise marriage in various other forms and therefore, it is clear that there exists a clear intelligible link between religious beliefs of persons and the institution of marriage.
"It is submitted that the concept of marriage, across personal law and jurisdictions, once solemnised as per the prevailing societal rituals or legal requirements, creates reciprocal legal and social obligations on part of both individuals. It is submitted that at the same time, marriage creates social and legal rights on the part of both individuals and others in the family, in various domains of civil laws and even criminal law," said the affidavit.
