The Center opposes criminalizing marital rape because they believe it would cause marital discord. In relation to this specific case, applications are being considered by the Supreme Court of India. The Center contends that in order to maintain the institution of marriage, a husband should continue to have legal immunity. The government demands a thorough strategy that takes social effects into account.
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In a recent petition to the Supreme Court, the central government opposed the criminalization of marital rape, claiming that calling it "rape" is "excessively harsh, disproportionate," and that doing so will "destroy" the institution of marriage.
The Ministry of Home Affairs filed a 49-page affidavit during the ongoing Supreme Court hearing on appeals against the criminal code's marital rape exception, also known as Bharatiya Nyaya Sanhita under legislation pertaining to sexual assault against women. Under the Domestic Violence Act of 2005, non-consensual activities against a wife are currently punishable by law.
Marital Rape: What is It?
- The phrase marital rape (sometimes referred to as spousal rape) refers to forced intercourse by a man on his wife gained by force, threat of force or physical violence or when the woman is not able to give her consent.
- Unwanted intercourse is any form of penetration (oral, vaginal, or anal) that is done against the subject's will or without permission.
- This is predicated on the idea that a married woman has no legal right to forgo having sex with her spouse. This grants husbands permission to rape their wives and gives them the right to have sexual access over them, which is a clear violation of human rights norms.
Legal Status of Marital Rape in India
The complicated legal subject of whether a husband who forces his non-minor wife to have sex may be spared from punishment for the crime of rape is brought before the Supreme Court on a regular basis.
- The Indian Penal Code (IPC), which has been abolished and replaced by the Bharatiya Nyaya Sanhita (BNS), contains an exemption clause that states that sexual actions or relations between a man and his wife, if the wife is not a minor, are not constituted rape.
- Even with the new law, a man's sexual relations or activities with his own wife, provided that she is not younger than eighteen, are not considered rape under Exception 2 to Section 63 (rape).
What is the Govt Pleas for Criminalizing Marital Rapes?
- According to the Center, abuse of the modified laws cannot be completely ruled out given how quickly society and families are evolving and how difficult it would be for someone to demonstrate whether or not permission was obtained.
- It stated that after taking into consideration perspective of each state, a comprehensive approach and engagement with all states are required to determine whether the provision is constitutional.
- It stated that the topic at hand is more of a social than a legal one, and a decision cannot be made without carefully consulting all relevant parties and the views of all states.
Observation in the Part of Government
- The Center stated that given the structure of the marriage institution in our socio-legal environment, it would not be appropriate for this court to invalidate the exception if the legislature believes that the challenged exemption should continue to exist in order to safeguard the institution of marriage.
- Consequently, given the understandable differences between a married couple and other types of relationships, it is respectfully submitted that the legislature's decision to exempt husbands from the severity of such a charge and label should be respected and should not be overturned, particularly in cases where the legislature has also provided a separate, appropriately tailored penal remedy.
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