The Union government has said that the classification of marital rape as an offence is "excessively harsh" and criminalising it would affect the sanctity of the institution of marriage. These arguments were made in an affidavit filed by the government before the Supreme Court in response to petitions seeking the criminalisation of marital rape. Citing that there are existing legal remedies in place to protect married women from sexual violence, the affidavit, filed by the Ministry of Home Affairs on Thursday, October 3, maintains that sexual violence in marriages should not be punished at par with sexual violence against women by strangers.

The Union government invoked social and religious tenets to defend marital rape, saying that while a husband has no right to violate his wife, rape within a marital bond does not warrant harsh punishment. However, the government’s take on the issue does not add up because data shows a high incidence of marital rape in India. 

A bench comprising Chief Justice DY Chandrachud, Justices JB Pardiwala, and Manoj Misra was hearing the said petitions, which seek a change in the law regarding marital rape. The petitions challenge the constitutionality of Exception 2 to Section 375 (rape) of the Indian Penal Code (IPC), which exempts a husband from being charged with the rape of his adult wife. A similar provision is also included in the newly enacted Bharatiya Nyaya Sanhita (BNS), which replaced the IPC on July 1 this year.

Is criminalising marital rape “too harsh”?

Under Section 63(2) of the BNS and Section 375 of the IPC, the offence of rape is defined, but both contain a significant exemption: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.” This exemption essentially says that a man who commits the offence of rape on his adult wife will not have to face legal consequences under this provision.

The Union government argued before the SC that though "a husband certainly does not have any fundamental right to violate the consent of the wife," equating marital sexual violence with rape is “too harsh”. The affidavit also said that a breach of consent within a marriage should be treated differently, since “the sexual aspect is but one of the many facets of the relationship between a husband and wife”. 

However, a look at the National Family Health Survey 5 (2019-21) reveals that a majority of women who survived sexual violence name their husbands as their perpetrators, and such violence in a marital equation is not independent of other factors, like the government claims.

“Among married women aged 18-49 who have ever experienced sexual violence, 82% report their current husband and 14% report a former husband as perpetrators,” the survey reads. It also says that one-fourth of the ever-married women aged 18-49 who have experienced spousal physical or sexual violence report having physical injuries, including 7% who have had eye injuries, sprains, dislocations, or burns and 6% who have had deep wounds, broken bones, broken teeth, or any other serious injury. The survey further adds that only 14% of the women who have experienced physical or sexual violence have been able to seek help to stop the violence.

The survey also records that 19% of men do agree that a husband has the right to get angry and reprimand a woman if she refuses to have sex with her husband. It says that while many women and men agree that a husband can beat his wife for “valid” reasons, the incidence of such belief has increased in men by 2%. 

Elaborating that sexual violence does not happen in isolation from other kinds of violence like physical abuse, verbal harassment, and emotional torture, the survey adds that attempts by husbands to closely control and monitor their wives’ behaviour are important early warning signs and correlates of violence in a relationship.

Despite these numbers, the Union government told the SC in its affidavit that “in an institution of marriage, there exists a continuing expectation, by either of the spouses, to have reasonable sexual access from the other.” This, the government argued, “constitutes a sufficient basis for the legislature to distinguish between non-consensual sex within the marital sphere and from sexual violence without it.” Essentially, the government argues that the vow of commitment and the obligation to uphold it in a marriage makes spousal violence deserving of lesser punishment.

It must be noted that several women’s rights activists and legal experts have been pointing out how the exemption of marital rape from our criminal codes is a demonstration of the sexist idea that a husband has ownership over the wife’s body, which by extension makes violence against the wife by her husband less grave. 

Several women are left with little to no help because early warning signs of spousal aggression are either brushed aside or normalised, and when this transgresses into grave sexual violence, the law seems to uphold the preservation of the marital institution over women’s safety.

The affidavit further noted that several legal protections already exist for women within marriage, such as Section 498A of the IPC (which deals with cruelty to women) and the Protection of Women from Domestic Violence Act. These laws are intended to address breaches of consent without directly criminalising marital rape. 

Multiple petitions challenging the marital rape exception have been pending before the Supreme Court. In 2022, the Delhi High Court delivered a split verdict on whether marital rape should be criminalised, leading the matter to reach the Supreme Court in September of that year. In an affidavit submitted before the Delhi High Court in January 2022, the Union said that criminalising marital rape "could open floodgates for false cases with ulterior motives." It has maintained the same stance in the current affidavit as well, calling marriage not “just a private institution” but a “sacrament” between two individuals.

However, recent rulings by the High Courts of Karnataka and Gujarat have allowed for the prosecution of husbands accused of raping their wives, though the Supreme Court has stayed the Karnataka HC ruling.