The Indian government has stated its opposition to categorising non-consensual sexual acts by a husband towards his wife as “rape,” arguing that such a classification could have negative implications on marital relationships and the institution of marriage. The Ministry of Home Affairs presented its stance to the Supreme Court, emphasising that while a husband does not possess the right to violate his wife’s consent, labelling such actions as “rape” would be considered “excessively harsh and disproportionate.”
This marks the first instance where the federal government, led by Prime Minister Narendra Modi, has officially objected to calls for eliminating the marital rape exception in Indian law. The government’s submission was in response to a set of petitions urging the removal of the provision in the country’s penal code that currently states, “sexual acts by a man with his own wife, where the wife is not under eighteen years of age, do not constitute rape.”
In a detailed 40-page affidavit, the central government acknowledged that a husband does not have any inherent right to disregard his wife’s consent. However, it proposed a balanced approach to address such violations within the context of marriage, highlighting the need to reconcile fundamental rights in matrimonial relationships. The government affirmed that a woman’s consent remains intact in marriage, and breaching it should lead to legal consequences, but emphasised the differing nature of violations within the marital union compared to outside of it.
The government’s stance comes after a previous indication in 2022 during a hearing at the Delhi High Court, where it expressed the necessity for further discussions and ongoing reviews of criminal laws on the matter. The Ministry of Home Affairs acknowledged that marital rape should be outlawed with criminal implications, while recognising the rights to privacy and dignity of both parties in a marriage. It cautioned that invoking rape charges in marital disputes may not fully capture the complexities of matrimonial relationships and could potentially disrupt marital harmony.
The affidavit also addressed the expectation of reasonable sexual access between spouses, underscoring that this does not justify coercion. It pointed out the absence of certain obligations and considerations in cases involving strangers, leading to the distinction between non-consensual acts within and outside the marital sphere. The government explained its decision to retain the marital rape exception, citing societal, cultural, and economic factors as influencing parliament’s stance and advocating for judicial restraint in addressing the issue.
Furthermore, the government raised concerns about potential misuse of marital rape laws and proposed the need for consultation with all stakeholders and states before arriving at a decision. It highlighted the issue as a social concern rather than merely a legal one, underscoring the complexity of consent within marriages. The government called for a nuanced approach that respects the diversity of socio-economic and cultural factors influencing marital dynamics.