Attracting the offence of rape when consent is violated in the institution of marriage may be “excessively harsh” and “disproportionate”, the Centre told the Supreme Court on Thursday, Live Law reported.

Alternative legal remedies exist to protect married women against such sexual violence, the Centre said in an affidavit filed before the Supreme Court against a batch of petitions that have called for the criminalisation of marital rape in India. The affidavit was filed by the Ministry of Home Affairs.

Exception 2 to Section 375 of the Indian Penal Code states that forcible sexual intercourse by a man with his wife is not rape unless the wife is below 15 years of age. Section 375 defines the offence of rape. The provision now comes under Section 63 of the Bharatiya Nyaya Sanhita.

A bench of Chief Justice DY Chandrachud with Justices JB Pardiwala and Manoj Misra is hearing the petitions against the constitutional validity of this exception.

“It is submitted that a husband certainly does not have any fundamental right to violate the consent of the wife,” the Centre said, according to The Indian Express. “However, attracting the crime in the nature ‘rape’ as recognised in India to the institution of marriage can be arguably considered to be excessively harsh and therefore, disproportionate.”

Marital rape as an act “ought to be illegal and criminalised”, the affidavit noted. “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”, it added.

The affidavit also claimed that the matter was more of a social issue than a legal one, and had a direct bearing on society, according to Bar and Bench. It was not up to the court to decide whether martial rape could be criminalised, it added.

“The [matter] cannot be decided without proper consultation with all the stakeholders or taking the views of all the states into consideration,” it said.

Several legal remedies exist to protect a married woman’s consent within marriage, including laws punishing cruelty to married women under Section 498A under the Indian Penal Code, punishment for acts against the modesty of women and remedies under the Protection of Women from Domestic Violence Act, the Centre said.

“The sexual aspect is but one of many facets of the relationship between husband and wife, on which the bedrock of their marriage rests,” the affidavit said. “Given the nature of the marital institution in our socio-legal milieu, if the legislature is of the view that, for preservation of the marital institution, the impugned exception should be retained, it is submitted that it would not be appropriate for this Hon'ble Court to strike down the exception.”

The Centre also said that the existing law took into account consent regarding sexual advances between spouses and only accorded different treatment when it was within a marriage.

This was in line with Article 14 of the Constitution, which guarantees equality before the law, as it refused to treat two incomparable situations as equal, it added.

Multiple petitions challenging the marital rape exception in Section 375 of the Indian Penal Code are pending before the Supreme Court. However, no hearing has taken place in the matter since January 2023.

In an affidavit filed in January 2022 before the Delhi High Court, the Centre had said that criminalising marital rape “could open floodgates of false cases being made with ulterior motives.

In the last few years, the High Courts of Karnataka and Gujarat have overruled the marital rape exception and allowed the prosecution of husbands accused of raping their wives. The sanction by the Karnataka High Court, however, was subsequently stayed by the Supreme Court.

Also read: Explainer: Why is marital rape not a crime in India – and can the courts make it one?